When the State charges a person with committing a drug crime, it often must rely on circumstantial evidence to prove its case. While such evidence is generally admissible, inaccurate evidence is not, especially if it is prejudicial to the defendant. Thus, if the State relies on false statements in support of its claims a defendant committed a drug crime, it may be considered a violation of the defendant’s rights and may warrant a reversal of a conviction. What constitutes prejudicial evidence sufficient to vacate a guilty verdict was the topic of a recent New Jersey opinion in a case in which the defendant was convicted of multiple drug crimes after false statements were made to the jury. If you are charged with a drug offense, it is prudent to consult a New Jersey criminal defense attorney regarding your rights.

The Defendant’s Arrest and Trial

It is reported that the police surveilled the defendant at his mother’s home for about thirty days. They then obtained a search warrant and found drugs in the home, after which they arrested the defendant. He was charged with numerous drug crimes, and the matter proceeded to trial. During the trial, the State presented testimony indicating that drugs were obtained from the home three times prior to the defendant’s arrest and that the defendant visited the home during the middle of the night, neither of which was true. The defendant was convicted, after which he appealed, arguing in part that the admittance of prejudicial and false statements into evidence resulted in an unjust verdict.

Consequences of False Statements at Trial

Under New Jersey law, the likelihood of prejudice is strong when the evidence offered is proof of misconduct outside of the charged offense. For example, evidence of prior crimes increases the risk of conviction because it may persuade the jury that the defendant is an immoral person who is likely to commit crimes. Thus, a court may preclude evidence of other crimes unless it is for a permissible purpose, such as proof of intent, motive, opportunity, plan, or knowledge.

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Convictions for drug offenses can result in significant penalties, and in many cases, people charged with drug-related crimes are denied pre-trial release or subject to strict pre-release conditions. In some instances, though, the conditions of pre-trial release can be modified and made less restrictive. In a recent ruling, a New Jersey court discussed the grounds for altering the conditions of pre-trial release in a case in which the defendant was charged with multiple drug crimes. If you are accused of committing drug offenses, it is prudent to speak to a skillful New Jersey criminal defense attorney promptly to assess your options.

The Defendant’s Pre-Trial Release and Conditions

Allegedly, the defendant was charged with multiple drug crimes in February 2019. His release was ordered on level 3+ pre-trial monitoring, which included home detention. With the State’s consent, the terms of his release were relaxed on three occasions. The defendant then filed a motion seeking a further modification, in that he sought to have the home detention condition to be removed entirely. His request was based on the fact that new developments in the investigation of his case revealed numerous weaknesses in the State’s case that were previously not evident. The State argued the developments did not weaken their case and objected to the requested modification. The trial court denied the defendant’s request, after which he appealed.

Motion to Relax Conditions of Pre-Trial Release

On appeal, the appellate court noted that the trial court incorrectly deemed the defendant’s request as one to reopen a detention hearing and evaluated it based on the standards that applied to that motion. Thus, the appellate court found that the trial court applied the incorrect rule and failed to consider relevant factors.

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In New Jersey, the law dictates that certain sentences should be issued for certain crimes. A sentencing court is not always required to comply with sentencing guidelines, though, and can issue downgraded sentences in certain situations. A New Jersey court discussed when downgraded sentences are appropriate in a recent case in which the defendant was sentenced to probation following a conviction for a drug offense. If you are charged with drug trafficking or another drug crime, it is prudent to confer with an assertive New Jersey drug charge defense attorney to discuss what evidence you may be able to set forth in your favor.

The Alleged Crimes

It is reported that the defendant was arrested at an airport after it was revealed that two drug containers in his suitcase that were marked as laxatives actually contained cocaine. He stated a relative asked him to carry the drugs back into the country from the Dominican Republic and to deliver them to an individual in his town. He was charged with third-degree possession of a dangerous controlled substance and first-degree possession of a dangerous controlled substance with the intent to distribute.

Allegedly, the third-degree charge was dismissed, and the first-degree charge was reduced to a second-degree offense in exchange for a guilty plea. Additionally, the prosecution recommended a five-year prison term. During the sentencing hearing, the defendant’s attorney cited multiple mitigating factors and asked that the defendant be sentenced as a third-degree offender to a non-custodial probationary sentence. The court found the defense’s reasoning to be appropriate and sentenced the defendant to probation. The State appealed, arguing that the trial court erred in sentencing the defendant. The appellate court agreed and reversed the trial court ruling.

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People throughout New Jersey are aware that if individuals are stopped by the police, they must first be advised of their Miranda rights before any interrogation begins. It is not typical, though, for a person to know the full extent of the Miranda warning or to know if a less then complete warning has been administered. Regardless of an individual’s independent knowledge of their rights, if an investigating officer fails to provide a proper warning to a defendant, it may result in the dismissal of any conviction that arises out of evidence obtained via the defendant’s interrogation, as shown in a recent New Jersey case. If you are accused of a crime, it is advisable to meet with an accomplished New Jersey criminal defense attorney to examine your rights.

Facts of the Case

It is reported that the police stopped a car in the early morning for a traffic violation. There were two passengers in the car, one of whom was the defendant, that the driver identified as minors. The police noticed an odor of alcohol during the stop and requested that the driver undergo field sobriety testing. The driver became belligerent and ordered the other passengers to take things from the car. When the passenger door was opened the smell of marijuana wafted out of the vehicle. The police then advised the defendant to place her belongings back in the car because, at that time, they were going to conduct a narcotics investigation. The defendant complied and was advised of her Miranda rights.

Allegedly, the officer then asked the defendant if a purse in the car belonged to her. She responded, yes. The officer did not confirm that the defendant waived her rights prior to questioning her. Narcotics were found in the purse. The defendant was then charged with possession of a controlled dangerous substance and was adjudicated delinquent. She appealed, arguing that she was not properly advised of her rights.

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An Asbury Park NJ couple was stopped for a routine traffic violation but things escalated from there.  Police claim that an ensuing search of the driver, passenger and vehicle, yielded discovery of 40 bricks of heroine.  A subsequent search of the apartment of the suspects resulted in seizure of another 60 bricks of heroine, two kilos of cocaine, and $425,000 in cash.  Bail has been set at approximately $950,000 and $700,000 for the defendants.

In accordance with N.J.S.A. 2C:35-5, possession of in excess of five (5) ounces of cocaine is a First Degree Crime. The same holds true where someone possesses, with intent to distribute, more than this amount of heroine. These two suspects are obviously well over the threshold for a First Degree Offense.  The jail exposure would be, at a minimum, ten (10) years and the Brimage guidelines automatically apply given the First Degree charges.  This means that parole ineligibility and extended term provisions shall also apply in these cocaine and heroine cases.

As I read the newspaper articles, the circumstances of the searches appear, however, somewhat cryptic. This usually means that the underlying facts are tenuous.  Experienced NJ Cocaine Distribution Attorneys are going to be a necessity if these defendants are going to have any chance of mitigating these charges
 

On August 22, 2011, Governor Chris Christie signed SCS-28289, which criminalized the manufacture, distribution, sale, and possession of synthetic drugs commonly labeled as “bath salts” or “plant food” in New Jersey.  The bill, now known as “Pamela’s Law,” which was ultimately codified in N.J.S.A. 2C:35-5.3a (manufacture, distribution, and sale) and 2C:35-10.3a (possession) was named in memory of Pamela Schmidt, a Rutgers student and Warren Township resident, who was believed to have been murdered by an individual under the influence of synthetic drugs. 

 The following chemicals, all synthetic cannabinoids, are now a part of the Controlled Dangerous Substance (“CDS”) Act as Schedule I drugs:

·      3,4          – Methylenedioxypyrovalerone (MDPV)

·      4             – Methylmethcathinone (Mephedrone, 4-MMC)

·      3,4          – Methylenedioxymethcathinone (Methylone, MDMC)

·      4             – Fluoromethcathinone (Flephedrone, 4-FMC)

·      3             – Fluoromethcathinone (3-FMC)

·      4             – Methyxymethcathinone (Methedrone, bk-PMMA, PMMC

These chemicals are commonly found in products falsely labeled as “bath salts” or “plant food” with brand names such as “Energizing Aromatherapy,” “Kamikaze,” “Ivory Wave,” “Purple Wave,” “Red Dove,” “Blue Silk,” “Vanilla Sky,” and many others.  Until recently, they were available for purchase online and in local gas stations, convenience stores, and smoke shops. 

The chemicals are sprayed on a mixture of common herbs, creating the synthetic marijuana, which is also referred to as “K2” or “Spice.”  In some instances, the chemicals have even been marketed as a cocaine substitute.

Consumption of these chemicals can cause extreme, severe physical and psychological symptoms including:  extreme anxiety, paranoia, delusional thinking, visual and auditory hallucinations, violent outbursts, self-mutilation, suicidal thoughts, increased blood pressure and heart rate, severe chest pains, and jerky muscle movements.  There have been well over 500 cases of adverse reactions of the chemicals since 2009, according to the American Association of Poison Control Centers.

In addition to the fact that synthetic marijuana was recently available over the counter and online, another attractive quality for consumers was the inability to detect synthetic marijuana in standard drug tests. However, a recent drug test has been developed for synthetic marijuana, which decreases the utility of the synthetic version as opposed to the real thing.

What are the penalties for possession/distribution of synthetic marijuana in New Jersey?

Under N.J.S.A. 2C:35-5.3a, it is a crime of the second degree to manufacture, distribute, sell, or possess with the intent to manufacture, distribute or sell synthetic drugs where the quantity involved is one ounce or more.  Where the quantity involved is less than one ounce, it becomes a crime of the third degree.

Under N.J.S.A. 2C:35-10.3a, it is a crime of the third degree to possess synthetic drugs, where the quantity involved is one ounce or more.  Where the quantity involved in less than one ounce, it becomes a crime of the fourth degree.

Crimes of the second degree are punishable by up to 10 years in New Jersey State Prison.  Crimes of the third degree are punishable by up to 5 years in New Jersey State Prison.  Crimes of the fourth degree are punishable by up to 18 months in New Jersey State Prison.

Obviously, this means that crimes associated with synthetic drugs are serious, with serious consequences.  In fact, the punishments associated with the manufacture, distribution, sale, and possession of synthetic marijuana are higher than those associated with “real” marijuana.   (In some cases, charges associated with “real” marijuana only rise to the level of a disorderly persons offense, as opposed to a crime.)

What should I do if I am charged with the manufacture, distribution, sale or possession of synthetic drugs in New Jersey?

Contact a lawyer.  Unlike with “real” drugs, law enforcement officers are not yet equipped with field test kits to detect the presence of synthetic drugs.  Therefore, if they fail to follow proper procedure and send the suspected synthetic drugs to the laboratory for testing, the charges can be dismissed.

Our criminal defense team is composed of seven (7) criminal defense lawyers with over 100 years of experience representing clients throughout New Jersey. With former prosecutors on staff, our criminal defense team is ready and able to represent you against charges for possession or distribution of synthetic marijuana. Contact our office anytime for a free initial consultation at (732)450-8300.

Local news sources have reported on the arrest of a Monmouth County man stemming from his attempt to fill a fake prescription in Middlesex County.  The script was for oxycodone and was presented in the name of a NY physician.  The gentelmen was charged with Third Degree Prescription Fraud and an assortment of other charges. We have been consulted by the suspect based on our experience in this area of law.

The main laws implicated in a case like this are N.J.S.A. 2C:35-13 (“Obtaining Prescription Drugs by Fraud”), N.J.S.A. 2C:21-1  (“Forgery”), and N.J.S.A. 2C:35-10.5 (“Prescription Drug Possession or Distribution”). The primary focus of the prosecution in these cases is typically the Prescription Fraud charge under N.J.S.A. 2C:35-13, which is a Third Degree Crime. The possession offense is usually secondary as most individuals are caught without obtaining the prescription drugs or otherwise possess a limited quantity of pills.  There is also a Fourth Degree charge which comes up in these cases that involves possession of a prescription drug without a valid prescription issued by a licensed doctor. 

We also find that these charges frequently have a dependency overlay.  Opiate drugs can be very addictive and can cause all types of people to resort to criminal conduct to avoid withdrawal sickness. In fact, we have even represented doctors, pharmacists, pharmaceutical sales representatives, nurses, and medical office managers on these types of charges.  Over our years of experience defending these cases, we have built a network of professionals to address dependency issues which allows us to attack these cases on all fronts.

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.