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

New Jersey Expungement Law Now Includes Drug Distribution & A Reduced Waiting Period For Indictable Offenses

While it is extremely rare that NJ legislators do anything that can be construed as favoring criminal defendants, that may just have happened last week when bill number A-1771 was signed into law. The legislation amends longstanding regulations regarding what can be expunged and the waiting period that must expire before a petition to expunge can be filed. New Jersey Expungement Attorneys and their clients will find these amendments extremely pleasing.

Under the new law, individuals who have been convicted of possession with intent to distribute controlled dangerous substances (“CDS”) are now eligible for expungement. Previously, the only distribution charges that could be expunged were those involving “young offenders” who sold marijuana. The expungement law now expands eligibility to include all Third Degree and Fourth Degree drug distribution convictions, even those involving heroin, cocaine, crack and prescription drugs.

Another significant change contained in the law involves the reduction of the waiting period for expungement of indictable (a.k.a. felony) offenses from ten (10) years to five (5) years.

The new provisions of this law will undoubtedly help hundreds, if not thousands of individuals, to expunge criminal records which previously were permanent. This means that all those people who were convicted of intent to distribute marijuana, cocaine, or some other form of CDS decades ago, can finally get the monkey off their back. I can tell you first hand that this is going to make the lives of many individuals much better. I cannot explain just how many calls we field every year from individuals convicted years ago for distribution and who have suffered for their mistake every time they have attempted to get a better job. This issue can finally be put behind them.

By Jonathan F. Marshall|2012-06-07T17:44:50+00:00June 7, 2012|Expungement|Comments Off

Elizabeth Municipal Court

Elizabeth Municipal Court, 208 Commerce Place, Elizabeth, NJ 07201

Telephone Number: 908-558-6800

Website: http://www.elizabethnj.org

Court Representatives: The Judges are the Honorable Roman A. Montes (Chief Judge), Honorable Carl Marshall, Honorable Richard Obuch, and Honorable Daniel Russell. The Prosecutors are Norma Murgado, Christopher Howard, Ashton E. Thomas, Vito Mazza, Patricia Mack, Lawrence Centanni, Tangerla Mitchell-Thomas, Annette Quijano, Anabela Dacruz-Melo.

Marijuana Possession
Drug Paraphernailia
DWI
Shoplifting
Driving While Suspended
Driving Without Insurance
Disorderly Persons Offenses
Traffic Charges

By Jonathan F. Marshall|2012-06-07T17:44:48+00:00June 7, 2012|Municipal Courts|Comments Off

International Extradition & Noriega Litigation

I have to admit that Manuel Noriega was little more than a name from the past in my mind until I read some recent news. He apparently completed an incarceration in Federal Prison in 2007 but has continued to be held while contesting an extradition warrant and/or demand from France. These efforts to block extradition to France have reached an end, however, as a result of the recent United States Supreme Court decision in his case. He is to be surrendered to French authorities in the near future.

International extradition can be very complex as illustrated by its taking approximately three (3) years to get a final order to extradite Mr. Noriega to France. Whether or not this variety of extradition was permissible hinged on the existence of an extradition treaty between the US and France, something which plainly exists. If the demand to extradite involved a country like Saudi Arabia or even Serbia, extradition would not be authorized as there is no treaty to allow for extradition to or from the United States.

Where a valid treaty exists, an Extradition Lawyer is limited to collaterally attacking the demand for the “fugitive”. This is how Frank Rubino crafted his objection on behalf of Mr. Noriega. His primary argument was apparently that the prisoners of war convention mandated a return of Mr. Noriega to his home country upon conclusion of his sentence. The Supreme Court disagreed.

By Jonathan F. Marshall|2012-06-07T17:44:48+00:00June 7, 2012|Extradition|Comments Off

Cranford Municipal Court

Cranford Municipal Court, 8 Springfield Avenue, Cranford, NJ 07016

Telephone Number: 908-709-7200

Website: http://www.cranford.com/township/display.asp

Court Representatives: The Judge is the Honorable Mark J. Cassidy and the Prosecutor is Robert Donovan. The Court Administrator is Lorraine Powell.

Marijuana Possession
Drug Paraphernailia
DWI
Shoplifting
Driving While Suspended
Driving Without Insurance
Disorderly Persons Offenses
Traffic Charges

By Jonathan F. Marshall|2012-06-07T17:44:47+00:00June 7, 2012|Municipal Courts|Comments Off

Underage Gambling Charges in New Jersey

A charge for underage gambling in New Jersey can have serious and lasting consequences. If convicted, this will lead to a permanent charge on your record which will appear on background checks conducted by educational institutions and potential employers. This can have a significant negative impact on a young person and their future. A criminal charge for underage gambling in New Jersey is governed by N.J.S.A. 5:12-119 which provides in pertinent part:

N.J. Stat. § 5:12-119 (2010) Gaming by certain persons prohibited; penalties; defenses
a. No person under the age at which a person is authorized to purchase and consume alcoholic beverages shall enter, or wager in, a licensed casino or simulcasting facility; provided, however, that such a person may enter a casino or simulcasting facility by way of passage to another room, and provided further, however, that any such person who is licensed or registered under the provisions of the “Casino Control Act,” P.L. 1977, c. 110, may enter a casino or simulcasting facility in the regular course of the person’s permitted activities.

Any person who violates this subsection shall be guilty of a disorderly persons offense and shall be fined not less than $ 500 and not more than $ 1,000. In addition, the court shall suspend or postpone the person’s license to operate a motor vehicle for six months.

Unfortunately, the Atlantic City Municipal Court and the Atlantic City Municipal Prosecutor have a “ban” on plea bargaining a criminal charge for underage gambling in Atlantic City. As a result, as a defendant, you have two options. The first option is to plead guilty with the minimum penalties and the second option is to take the case to trial. The minimum penalties include a $500.00 fine and a six month suspension of your driving privileges in New Jersey. To prove a violation of this statute, the State must only show that an individual under the legal age to drink (21) was present on the casino floor, provided that the individual is not merely “passing through” such as traveling through the casino to reach the hotel lobby.

It is imperative that you have an experienced criminal defense lawyer represent you at trial. The State typically produces evidence, including a narrative report of the incident and video footage of the alleged crime, which must be reviewed and entered into evidence at trial. Moreover, the State must call the security officers to the stand to testify as to their observations and actions. If the State’s witnesses fail to appear for trial, we may be able to get the charges dismissed altogether.

If you or a loved one has been charged with underage gambling in New Jersey, contact my law firm for immediate assistance at (732)450-8300. The initial consultation is always provided free of charge.

By Jonathan F. Marshall|2012-06-07T17:44:46+00:00June 7, 2012|Case Summaries|Comments Off

Underage Drinking Charges in New Jersey: N.J.S. 2C:33-15

The summer is here. School is out. You have so much free time! Graduation parties to attend every weekend. Barbecues all summer long. Liquor is everywhere, you aren’t 21 yet but it is so tempting, everyone else is doing it. You have a few beers, a few cocktails, the party is over and you feel okay to drive. Just a mile before you get home you are stopped by a police officer. He makes you recite the alphabet backwards, follow his finger with your eyes, and before you know it you are blowing into the breathalyzer contraption. Now you are sitting in jail facing drunk driving charges, all because of peer pressure and a good time.

In the State of New Jersey, a Blood Alcohol Content (BAC) of .08% or higher constitutes a DWI offense. However, if you are under the legal drinking age of 21, even a BAC of .08% or less will land you a DWI charge.

If you are under the age of 21, drinking and driving can lead to the loss or suspension of your license for at least 6 months. If you are caught drinking in a car and you do not yet have your license, your license will be suspended for 6 months as soon as you are eligible to receive your license. Even if you are from another state and caught drinking and driving in the State of New Jersey, your driving privileges in the State of New Jersey will be suspended for 6 months. You can even be mandated to participate in alcohol education or treatment programs, community service or pay heavy fines. In New Jersey, a DWI is not a criminal offense so you do not get a jury trial.

§ 2C:33-15. Possession, consumption of alcoholic beverages by persons under legal age; penalty

a. Any person under the legal age to purchase alcoholic beverages who knowingly possesses without legal authority or who knowingly consumes any alcoholic beverage in any school, public conveyance, public place, or place of public assembly, or motor vehicle, is guilty of a disorderly persons offense, and shall be fined not less than $ 500.00.

b. Whenever this offense is committed in a motor vehicle, the court shall, in addition to the sentence authorized for the offense, suspend or postpone for six months the driving privilege of the defendant.

Possession or consumption of alcohol, even when not operating a motor vehicle, is illegal in New Jersey if you are under 21 years of age. In some areas of New Jersey it is even illegal to possess or consume alcohol under the age of 21 if you are on PRIVATE property. So even if you are in someone’s backyard for their barbecue, if they live in one of these areas you can still be charged with this offense. A charge of a disorderly persons offense goes on your permanent criminal record and can affect your future education and employment opportunities. In today’s economy many schools and employers do criminal background checks and any offense can disqualify you for acceptance to a college or university or an employment position.

Don’t face these charges alone. At the Law Offices of Jonathan F. Marshall, our criminal defense team attorneys handle thousands of DWI and underage alcohol related charges. With their prosecution backgrounds, our attorneys know the best techniques to defend clients against these charges. Our attorneys can work with the prosecutors and judges to get your charges downgraded or even dropped completely. Every situation is unique and you may have different downgrades available. If you or someone you know is facing underage drinking charges call our office today for your free consultation 732-450-8300.

By Jonathan F. Marshall|2012-06-07T17:44:43+00:00June 7, 2012|Underage Drinking|Comments Off

Wall Township Drunk Driving (DWI) Charge Dismissed

My law firm recently represented a client charged with a driving while intoxicated (DWI) offense in Wall Township, New Jersey in Monmouth County.

This was the client’s first DWI charge and the breath test readings were .07% Blood Alcohol Content (BAC). Although this is not a “per se” violation of the statute because the legal limit in New Jersey is .08%, the State can still prove a DWI charge using the psycho-physical tests. These are the field sobriety tests performed by law enforcement officers at the scene of the drunk driving stop.

A first offense DWI charge in New Jersey has the following penalties with a breath reading of .07%:

Three (3) months driver’s license suspension
Fine: $250.00 to $400.00
Up to thirty (30) days in jail at the discretion of the court
Between twelve (12) and forty-eight (48) hours in the Intoxicated Driver Resource Center (IDRC)
New Jersey DMV Surcharge: $1,000.00 per year for three years
Mandatory fines and penalties

In this case, we were able to isolate significant problems with the breath testing device including problems with the standard solution and the solution change on the Alcotest 7110 breath testing machine. Further, the State was unable to prove the drunk driving charge based on the field sobriety tests. As a result, our attorneys were able to convince the State that they could not prove the driving while intoxicated (DWI) charge and the case was dismissed. This was a great result for our client and the firm.

By Jonathan F. Marshall|2012-06-07T17:44:43+00:00June 7, 2012|Case Summaries|Comments Off

Brimage Guidelines: Mandatory Periods of Parole Ineligibility (“Stip Time”) for Certain Drug Crimes

In State v. Brimage, 153 N.J. 1 (1998), the New Jersey Supreme Court was called upon to address the constitutionality of N.J.S.A. 2C:35-12, which the Court characterized as an “atypical” sentencing statute because it shifted sentencing power from the judiciary to the prosecutor. The Court held that to satisfy the constitutional requirements of the separation of powers doctrine, prosecutors must be guided by specific, universal standards in their waiver of mandatory minimum sentences under the Comprehensive Drug Reform Act. Because the then-existing plea negotiation guidelines were not adequate, the Court directed the Attorney General to issue new guidelines – now known as the “Brimage Guidelines” – to promote uniformity and to prevent arbitrariness. The new guidelines became effective on May 20, 1998.

Often times, defense attorneys negotiate plea agreements on behalf of their clients, but still reserve the opportunity to “argue for less” at the time of sentencing – and quite frequently judges agree and render lower sentences than those called for under the plea agreements. However, unlike with ordinary plea agreements, an agreement made under the “Brimage Guidelines” binds judges not to impose a lesser term than that to which the parties agree.

Therefore, the consequences of being charged with a drug offense that may subject you to sentencing under the “Brimage Guidelines” is serious. For example, if you are charged with a violation of 2C:35-5, Distribution/Possession With Intent to Distribute a Controlled Dangerous Substance (“CDS”) and you are first-time offender, you may be eligible to enter a plea agreement that will only subject you to a non-custodial sentence (i.e., probationary sentence). However, if you are charged with a violation of 2C:35-5, Distribution/Possession With Intent to Distribute CDS and you are a repeat offender, the “Brimage Guidelines” will likely be applicable and your sentence will likely be a term of imprisonment in New Jersey State Prison with a mandatory period of parole ineligibility.

“Brimage Guidelines” apply to violations of the following New Jersey drug statutes:

2C:35-3 Leader of a Drug Trafficking Network

2C:35-4 Operating a Drug Production Facility

2C:35-5 Distribution/Possession With Intent to Distribute – First Degree OR

2C:35-5 Distribution/Possession With Intent to Distribute – Repeat Offender

2C:35-6 Using a Juvenile in Drug Distribution

2C:35-7 Distribution/Possession With Intent to Distribute in a School Zone

Most notably, on January 12, 2010, N.J.S.A. 2C:35-7 (Distribution/Possession With Intent to Distribute CDS in a School Zone) was amended to give discretion under certain circumstances to waive or reduce the mandatory term of imprisonment and parole ineligibility in school zone cases. The amendment was intended to address concerns about the broad geographic sweep of the school zone offense. In some jurisdictions, and especially in densely populated urban areas, most locations are situated within 1,000 feet of a school. As a result, the law’s mandatory minimum sentencing provisions can apply even though the conduct did not directly endanger schools or school-aged children.

The circumstances under which courts can waive or reduce the mandatory term of imprisonment and parole ineligibility in school zone cases are set forth in N.J.S.A. 2C:35-7b(1):

a. the extent of the defendant’s criminal record and the seriousness of any prior offenses for which the defendant has been convicted;

b. the specific location of the present offense in relation to school property and the reasonable likelihood of exposing children to drug-related activities at that location;

c. whether school was in session at the time of the offense; and

d. whether children were actually present or in the immediate vicinity when the offense took place.

However, you are ineligible for a waiver or reduction if the offense took place while on school property or a school bus; or if violence was used or threatened during the commission of the offense; or if a firearm was possessed during the commission of the offense.

By Jonathan F. Marshall|2012-06-07T17:44:42+00:00June 7, 2012|Drug Offenses|Comments Off

Gun Charges in New Jersey: The Graves Act

The “Graves Act,” N.J.S.A. 2C:43-6(c), requires the imposition of a minimum term of imprisonment and parole ineligibility for certain gun-related crimes. Until its amendment in 2008, the “Graves Act” only applied when a person was convicted of possessing or using a firearm while in the course of committing certain predicate crimes, or possession of a firearm for an unlawful purpose in violation of N.J.S.A. 2C:39-4(a). However, following that amendment, the list of offenses that are now subject to the “Graves Act” was significantly expanded and now includes a number of possessory firearms crimes, including:

· Unlawful Possession of a Machine Gun, Handgun, Rifle or Shotgun, in violation of N.J.S.A. 2C:39-5(a), (b) or (c).

· Possession of a Sawed-Off Shotgun, in violation of N.J.S.A. 2C:39-3(b).

· Possession of a Defaced Firearm, in violation of N.J.S.A. 2C:39-3(d).

· Possession of a Firearm While in the Course of Committing a Drug Distribution or Possession With Intent to Distribute Offense, in violation of N.J.S.A. 2C:39-4.1(a).

· Possession of Certain Weapons by Persons Previously Convicted of Specified Offenses, in violation of N.J.S.A. 2C:39-7(a) or (b)(2).

· The Manufacture, Transport, or Disposition of a Machine Gun, Sawed-Off Shotgun, or Assault Firearm, in violation of N.J.S.A. 2C:39-9(a), (b), or (g).

· The Defacement of a Firearm, in violation of N.J.S.A. 2C:39-9(e).

Except as otherwise provided or negotiated, a person convicted of any of the foregoing crimes must be sentenced to a term of imprisonment with a minimum term of parole ineligibility fixed at, or between, one-third to one-half of a sentence imposed, or three years, whichever is greater (or eighteen months in cases involving crimes of the Fourth Degree). In other words, if a person is convicted of the “Graves Act” offense of Unlawful Possession of a Handgun, in violation of N.J.S.A. 2C:39-5(b), a crime of the Second Degree, the sentencing range is between five and ten years New Jersey State Prison with a period of parole ineligibility of between three and five years.

Additionally, a person convicted of a “Graves Act” offense who has previously been convicted of certain firearms offenses must be sentenced to a mandatory extended term of imprisonment, pursuant to N.J.S.A. 2C:44-3(d). When that “repeat gun offender” statute applies, the sentence imposed must include a minimum term of parole ineligibility fixed at or between one-third to one-half of the extended term sentence, or five years, whichever is greater.

Moreover, N.J.S.A. 2C:39-5(i) provides that a person convicted of the unlawful possession of a machine gun, handgun, or assault firearm must be sentenced to parole ineligibility term of five years if the sentencing court finds that the organized criminal activity aggravating factor – N.J.S.A. 2C:44-1(a)(5) – applies.

Potential Resolutions to Graves Act Offenses

The Pre-Trial Intervention (PTI) Program

In general, persons charged with any crime of the First or Second Degree, or those charged with an offense that carries a mandatory minimum term of imprisonment, such as the “Graves Act,” are subject to a presumption of PTI ineligibility.

While a defendant’s PTI application cannot be categorically denied, the Legislature’s 2008 policy decision to significantly upgrade the seriousness of firearm offenses has caused prosecutors to withhold their consent to a defendant’s admission to PTI unless the case involves extraordinary and compelling circumstances that fall outside the heartland of the legislative policy to deter unauthorized gun possession. For example, such a rare case would be one where the defendant has no prior involvement with the criminal justice system, the defendant lawfully acquired and possessed the firearm in a different state, and the defendant’s presence in New Jersey was incident to lawful travel.

For information regarding the lawful transport of firearms into/through New Jersey, see: http://www.njsp.org/about/fire_trans.html

Probation

Prosecutors will generally withhold their consent to a probationary sentence unless there are extraordinary and compelling reasons that take the case outside the heartland of the legislative policy to deter unauthorized gun possession. For example, such a rare case would be one where the defendant has no prior involvement with the criminal justice system, the firearm was unloaded, and the circumstances make clear that the firearm posed no risk to officer or public safety. In such rare instances, the imposition of a state prison term would constitute a serious injustice that overrides the need to deter others from unlawfully possessing a firearm.

Waiver or Reduction of Sentence

N.J.S.A. 2C:43-6.2 outlines a procedure to allow for the reduction or waiver of an otherwise mandatory minimum term of imprisonment and parole ineligibility imposed under the “Graves Act.” In determining whether to move for or approve the waiver or reduction of a minimum term of parole ineligibility under that statute, prosecutors generally consider all relevant circumstances concerning the offense conduct and the offender, including those aggravating and mitigating circumstances set forth in N.J.S.A. 2C:44-1.

Note, however (as indicated above), that a waiver or reduction will not be approved when there is an indication that the offender may be subject to the organized criminal activity aggravating factor.

By Jonathan F. Marshall|2012-06-07T17:44:41+00:00June 7, 2012|Weapon Offenses|Comments Off

DWI Law in New Jersey: Operating a Vehicle

Here are a few case summaries of important case law in New Jersey regarding w operation of a vehicle:

State v. Mulcahy, 107 N.J. 467 (1987)

The important precedent from this case is that the key to establishing operation is whether or not the defendant intended to operate the vehicle. The Supreme Court of New Jersey held that police officers, who saw defendant, who was drunk, stagger out of tavern into car that was illegally parked on sidewalk, could arrest defendant for purposes of submission to sobriety test when defendant started to put keys in the ignition. The defendant’s attempt to place keys in the ignition was “operation” of motor vehicle sufficient to warrant submission to the breathalyzer test.

State v. Daly, 64 N.J. 122 (1973)

The defendant did not possess an “intent” to operate his car notwithstanding the fact that the car was running insofar as he had been sleeping in the car with the heat on for almost 1.5 hours prior to police arriving.

State v. DiFrancisco, 232 N.J.Super. 317 (LawDiv.1988)

A defendant does not “operate” a motor vehicle under the DWI statute where it is impossible to move the vehicle. Defendant who was sitting behind steering wheel of pickup truck which was partially on a driveway and partially in a ditch and which, according to officer, could not be moved was not “operating” the truck and thus could not be convicted of driving while intoxicated.

In the absence of any evidence from the State showing that breathalyzer test was administered within a reasonable time after defendant was stopped for drunk driving, breathalyzer test results were inadmissible.

By Jonathan F. Marshall|2012-06-07T17:30:52+00:00June 7, 2012|Case Summaries|Comments Off

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