The Supreme Court issued a joint order today in four combined cases that sought to have the court do a back flip on Pena Flores. The State alleged that Pena Flores has been too big a burden on law enforcement and has resulted in less detection of criminal conduct. They supported this with NJSP data.
FOR NOW THE COURT REJECTED THE ATTORNEY GENERAL'S REQUEST THAT THE PENA-FLORES DECISION BE THROWN OUT.
Arguably, the state troopers wanted to get rid of the telephonic warrant requirement. It would explain their lack of confidence in the NJSP data.
Well, anyway Pena survives intact despite speculation as to why the court had granted cert on these cases. Now we know. View the court's order here.
Tuesday, February 7, 2012
Thursday, February 2, 2012
State v. DeShazo, WL 1562246 (App. Div. 2011)
DeShazo was arrested in Egg Harbor Township driving a car with Virginia plates and a broken out rear window. The officer thought the car might be stolen but could not immediately confirm it. The officer was told that DeShazo was the victim of a shooting and kept a weapon in the center console of his vehicle. The officer searched the car and found a gun. The trial judge denied the defendant’s motion to suppress evidence. Defendant appealed and the Appellate Court reversed.
Under State v. Pena–Flores, 198 N.J. 6, 28 (2009), a “warrantless search of an automobile” is permitted “where (1) the stop is unexpected; (2) the police have probable cause to believe that the vehicle contains contraband or evidence of a crime; and (3) exigent circumstances exist under which it is impracticable to obtain a warrant.”
The court found no exigent circumstances existed because:
1) This was a daylight search;
2) The three officers outnumbered defendant and his passenger.
3) The officers could have had the car towed to a secure location and escorted defendant and the passenger to the police station until a driver with a license could come to the station to operate the vehicle for defendant. Once the vehicle was at the station, the officers could have secured a search warrant.
4) There was no explanation why a telephonic warrant could not have been pursued, either at the station or at the roadside.
5) the search was extensive, including accessing the trunk from the passenger's compartment by pulling the cord hanging down from the backseat, which brought the rear seat flat to the seated portion of the vehicle. We are persuaded that exigent circumstances did not exist to allow a warrantless search of the automobile driven by defendant.
The Court of Appeals reversed and remanded.
Under State v. Pena–Flores, 198 N.J. 6, 28 (2009), a “warrantless search of an automobile” is permitted “where (1) the stop is unexpected; (2) the police have probable cause to believe that the vehicle contains contraband or evidence of a crime; and (3) exigent circumstances exist under which it is impracticable to obtain a warrant.”
The court found no exigent circumstances existed because:
1) This was a daylight search;
2) The three officers outnumbered defendant and his passenger.
3) The officers could have had the car towed to a secure location and escorted defendant and the passenger to the police station until a driver with a license could come to the station to operate the vehicle for defendant. Once the vehicle was at the station, the officers could have secured a search warrant.
4) There was no explanation why a telephonic warrant could not have been pursued, either at the station or at the roadside.
5) the search was extensive, including accessing the trunk from the passenger's compartment by pulling the cord hanging down from the backseat, which brought the rear seat flat to the seated portion of the vehicle. We are persuaded that exigent circumstances did not exist to allow a warrantless search of the automobile driven by defendant.
The Court of Appeals reversed and remanded.
Wednesday, February 1, 2012
Search Warrant Case
The Appellate Division decided yesterday, in the matter of State v. Heine, that a when a property owner refuses to permit access to a residence for inspection by local officials, the proper remedy is for the municipal inspectors to secure an administrative search warrant. The court ruled refusing access does not constitute a violation of a local ordinance in the absence of a search warrant.
In Heine, a variety of municipal health, construction and fire officials sought to inspect a residential property owned by the defendant. She refused them access to the property, believing it was a violation of her constitutional rights.
Following three trials, she was found guilty in municipal court of various local ordinance violations related to the lack of access for the inspections. However, the Appellate Division held that although an administrative search to the warrant requirement exists in closely regulated industries, that exception does not apply in the context of a private home.
In Heine, a variety of municipal health, construction and fire officials sought to inspect a residential property owned by the defendant. She refused them access to the property, believing it was a violation of her constitutional rights.
Following three trials, she was found guilty in municipal court of various local ordinance violations related to the lack of access for the inspections. However, the Appellate Division held that although an administrative search to the warrant requirement exists in closely regulated industries, that exception does not apply in the context of a private home.
Tuesday, January 31, 2012
State v. Shannon, 419 N.J. Super 235 (App. Div. 2011)
Shannon was stopped in a high-crime area for speeding and running a red light. Four police officers were present. They smell of marijuana was emanating from the car. When Shannon exited the car, they patted him down, searched inside the car where they found crack cocaine, cocaine and marijuana. They arrested Shannon, handcuffed and placed him in the back seat of a police car.
Defendant filed a motion to supress evidence. The trial court denied the order and the defendant appealed. The Appellate Court reversed.
Finding no exigency, the Court of Appeals held that the police reasonably could have obtained a telephonic warrant before searching the defendant's car. The court relied on the following factors:
1) The stop was unexpected and caused by motor vehicle infractions.
2) There was no indication that the police officers did not have sufficient time to obtain a telephonic warrant pursuant to Rule 3:5–3(b).
3) It was not late at night, the stop was in a residential area, and four police officers were initially present at the scene with defendant, who was alone.
4) No one had approached the vehicle during the stop.
5) There was no evidence that the police officers or potential evidence in the car were in danger.
6) Defendant was cooperative and had stepped away from the passenger compartment of the vehicle.
Defendant filed a motion to supress evidence. The trial court denied the order and the defendant appealed. The Appellate Court reversed.
Finding no exigency, the Court of Appeals held that the police reasonably could have obtained a telephonic warrant before searching the defendant's car. The court relied on the following factors:
1) The stop was unexpected and caused by motor vehicle infractions.
2) There was no indication that the police officers did not have sufficient time to obtain a telephonic warrant pursuant to Rule 3:5–3(b).
3) It was not late at night, the stop was in a residential area, and four police officers were initially present at the scene with defendant, who was alone.
4) No one had approached the vehicle during the stop.
5) There was no evidence that the police officers or potential evidence in the car were in danger.
6) Defendant was cooperative and had stepped away from the passenger compartment of the vehicle.
Monday, January 30, 2012
Consecutive Sentences & Parole Ineligibility
This week the New Jersey Appellate Division ruled that when a defendant is sentenced to consecutive sentences as a result of two separate charges in one indictment, for separate offenses arising out of the same set of circumstances, the trial court did not abuse its discretion and require two separate periods of parole ineligibility.
In State vs. Friedman the defendant pled guilty to three separate counts of second degree aggravated assault. The court sentenced the defendant three consecutive periods of incarceration for the three distinct crimes. As a result the defendant is required to serve three separate periods of parole ineligibility under NERA for each distinct guilty plea. The Appellate Division found this acceptable. See this NJ criminal case its entirety.
In State vs. Friedman the defendant pled guilty to three separate counts of second degree aggravated assault. The court sentenced the defendant three consecutive periods of incarceration for the three distinct crimes. As a result the defendant is required to serve three separate periods of parole ineligibility under NERA for each distinct guilty plea. The Appellate Division found this acceptable. See this NJ criminal case its entirety.
Saturday, January 28, 2012
State v. Shannon, 2011 WL 1562610 (App. Div. 2011)
Shannon was stopped for speeding. As the trooper approached the car, he could smell marijuana. Another trooper arrived as backup and the car was searched revealing a large quantity of marijuana, cocaine and heroin. Defendant was then placed under arrest, given his Miranda rights, and placed in the back of the police car. The trial judge found that there was probable cause to conduct the search and that exigent circumstances existed.
The main issue on appeal was whether there were sufficient circumstances that ripened into the exigency necessary to conduct a warrantless search. The Appellate Division rejected the finding of exigent circumstances justifying the warrantless search of the vehicle and suppressed the contraband.
Distinguishing Pena-Flores from this case, the Appellate Court considered the following factors in making the exigency determination:
1) There was no indication that the State Trooper lacked sufficient time to obtain a telephonic warrant pursuant to Rule 3:5–3(b);
2) It was not late at night, nor was the police officer impeded by tinted windows. He did not have to look through any windows because the odor of raw marijuana apparently was pungent enough for him to smell.
3) No one approached the vehicle during the stop. Nor was there any suggestion that any confederates were aware of the stop.
4) The officer did not even confiscate the contraband once he located it in the center console, but left it to be later secured. There was no concern that the evidence would not be preserved.
5) The State did not show that it was impracticable to obtain a telephonic warrant or that defendant could not have been placed under arrest.
6) The State did not show that the exigent circumstances were such that “ ‘law enforcement officers [did] not have sufficient time to obtain any form of warrant.’ “ Pena–Flores, supra, 198 N.J. at 30 (emphasis omitted) (quoting State v. Johnson, 193 N.J. 528, 556 n. 7 (2008).
Reversing the trial court’s decision, the Appellate Division held that there was no urgent need for the State Trooper to conduct a full search of the automobile during a daylight stop with another State Trooper assisting while defendant was outside of the vehicle and being watched over by the second trooper. The State made no effort to show that a telephonic warrant could not have been sought with expedition.
The main issue on appeal was whether there were sufficient circumstances that ripened into the exigency necessary to conduct a warrantless search. The Appellate Division rejected the finding of exigent circumstances justifying the warrantless search of the vehicle and suppressed the contraband.
Distinguishing Pena-Flores from this case, the Appellate Court considered the following factors in making the exigency determination:
1) There was no indication that the State Trooper lacked sufficient time to obtain a telephonic warrant pursuant to Rule 3:5–3(b);
2) It was not late at night, nor was the police officer impeded by tinted windows. He did not have to look through any windows because the odor of raw marijuana apparently was pungent enough for him to smell.
3) No one approached the vehicle during the stop. Nor was there any suggestion that any confederates were aware of the stop.
4) The officer did not even confiscate the contraband once he located it in the center console, but left it to be later secured. There was no concern that the evidence would not be preserved.
5) The State did not show that it was impracticable to obtain a telephonic warrant or that defendant could not have been placed under arrest.
6) The State did not show that the exigent circumstances were such that “ ‘law enforcement officers [did] not have sufficient time to obtain any form of warrant.’ “ Pena–Flores, supra, 198 N.J. at 30 (emphasis omitted) (quoting State v. Johnson, 193 N.J. 528, 556 n. 7 (2008).
Reversing the trial court’s decision, the Appellate Division held that there was no urgent need for the State Trooper to conduct a full search of the automobile during a daylight stop with another State Trooper assisting while defendant was outside of the vehicle and being watched over by the second trooper. The State made no effort to show that a telephonic warrant could not have been sought with expedition.
Friday, January 27, 2012
Summary Judgment granted to wrongfully convicted client
Sexual Assault Charges in New Jersey Ineffective -
Assistance Finding Is Held Basis for Legal Malpractice Judgment
As re-posted from, New Jersey Law Journal
Mary Pat Gallagher
January 19, 2012
A former client of the Public Defender's Office won summary judgment in a malpractice suit after a Mercer County judge gave collateral-estoppel effect to a finding that he received ineffective assistance of counsel.
Superior Court Judge Darlene Pereksta granted the motion on liability and causation in Hagan v. Office of the Public Defender, L-1346-10, on Jan. 6, leaving only damages to be litigated.
The ineffective-assistance finding led another judge to vacate Lewis Hagan's 2004 convictions of fourth-degree criminal sexual contact and third-degree child-welfare endangerment.
After direct appeals failed in 2007, Hagan petitioned for post-conviction relief, claiming his trial counsel, Assistant Deputy Public Defender Robert White III, failed to explore evidence that accusations made against him by the child's mother were retaliatory.
In October 2003, Hagan told the school principal of the 13-year-old, D.B., that her mother F.B., his girlfriend, was physically abusing her. When the principal informed him that D.B. was cutting class, he authorized giving her detention. The principal notified the Division of Youth and Family Services of Hagan's allegations, resulting in an investigation.
Hagan obtained a temporary domestic violence restraining order against F.B. on Nov. 17, 2003. She then obtained a similar order against him, claiming he made terroristic threats and burglarized her home.
On Dec. 4, 2003, F.B. reported to the police that D.B. claimed Hagan propositioned her sexually and touched her inappropriately a month earlier. Hagan was questioned and arrested. About a month later, Hagan was granted a final restraining order against F.B.
During a December 2004 trial, Hagan testified about his deteriorating relationship with F.B., but White did not present evidence about Hagan reporting F.B. for child abuse or the involvement of DYFS, despite Hagan's assertion that he told White about the DYFS referral in a May 2004 letter. White also failed to mention the restraining order against F.B., except briefly in his summation.
At the PCR hearing before Judge James Mulvihill, Hagan testified that he repeatedly told White about the restraining order and asked him to look into the DYFS report because it would show he was a responsible parent, but that White never answered his letters.
The report, obtained in the PCR case, confirmed Hagan's account.
Hagan also claimed he told White about a possible witness, Derrick Williams, who claimed he heard F.B. brag about setting him up.
White testified that he did not investigate the restraining orders for fear it would open the door for the state to mention the terroristic threat and burglary charges initially brought against Hagan but dismissed.
White said he was not aware of the DYFS referral but would not have used it because D.B.'s credibility was so weak he did not need to.
He also said he tried to contact Williams and learned he was in prison, and the public defender representing Williams refused to allow an interview.
White claimed that his defense strategy was to attack D.B.'s credibility and portray Hagan as a man who had a healthy relationship with his girlfriend and her children and that Hagan undermined that defense when he took the stand against his advice.
Mulvihilll vacated the conviction based on ineffective assistance, finding White should have used the evidence of Hagan's child-abuse report and the restraining order and should not have been deterred from speaking with Williams, and a reasonable probability existed that the outcome would have been different if he had done so.
Appellate Division Judges Joseph Yannotti and Thomas Lyons affirmed on Aug. 7, 2009, finding "substantial credible evidence" supported Mulvihill's decision.
Hagan was retried and acquitted on March 16, 2010. By then, he had been in custody for six years, mostly at the Adult Diagnostic and Treatment Center in Avenel.
In his motion for summary judgment in the malpractice case, Hagan contended that ineffective assistance is tantamount to malpractice, that the issues had been litigated to a final judgment to which the public defender and White were privy, and that fundamental fairness barred requiring him to relitigate them.
The public defender argued against issue preclusion on the grounds that the issues — whether Hagan was guilty in the PCR case and whether White was negligent in the civil case — were not identical, nor were the parties, because White and the office were not defendants in the PCR proceeding and had no lawyers representing them.
With summary judgment granted on liability and causation, Hagan's lawyer, Cherry Hill solo Jeffrey Hark, says he has moved for lost wages under a state law that allows wrongfully convicted people to recover $20,000 for each year of incarceration, plus legal fees. He also will seek noneconomic damages.
Public Defender spokesman Tom Rosenthal referred questions to the Attorney General's Office. Its spokesman, Lee Moore, declines comment.
White, now with Morris Starkman's Cherry Hill firm, did not return a call.
Assistance Finding Is Held Basis for Legal Malpractice Judgment
As re-posted from, New Jersey Law Journal
Mary Pat Gallagher
January 19, 2012
A former client of the Public Defender's Office won summary judgment in a malpractice suit after a Mercer County judge gave collateral-estoppel effect to a finding that he received ineffective assistance of counsel.
Superior Court Judge Darlene Pereksta granted the motion on liability and causation in Hagan v. Office of the Public Defender, L-1346-10, on Jan. 6, leaving only damages to be litigated.
The ineffective-assistance finding led another judge to vacate Lewis Hagan's 2004 convictions of fourth-degree criminal sexual contact and third-degree child-welfare endangerment.
After direct appeals failed in 2007, Hagan petitioned for post-conviction relief, claiming his trial counsel, Assistant Deputy Public Defender Robert White III, failed to explore evidence that accusations made against him by the child's mother were retaliatory.
In October 2003, Hagan told the school principal of the 13-year-old, D.B., that her mother F.B., his girlfriend, was physically abusing her. When the principal informed him that D.B. was cutting class, he authorized giving her detention. The principal notified the Division of Youth and Family Services of Hagan's allegations, resulting in an investigation.
Hagan obtained a temporary domestic violence restraining order against F.B. on Nov. 17, 2003. She then obtained a similar order against him, claiming he made terroristic threats and burglarized her home.
On Dec. 4, 2003, F.B. reported to the police that D.B. claimed Hagan propositioned her sexually and touched her inappropriately a month earlier. Hagan was questioned and arrested. About a month later, Hagan was granted a final restraining order against F.B.
During a December 2004 trial, Hagan testified about his deteriorating relationship with F.B., but White did not present evidence about Hagan reporting F.B. for child abuse or the involvement of DYFS, despite Hagan's assertion that he told White about the DYFS referral in a May 2004 letter. White also failed to mention the restraining order against F.B., except briefly in his summation.
At the PCR hearing before Judge James Mulvihill, Hagan testified that he repeatedly told White about the restraining order and asked him to look into the DYFS report because it would show he was a responsible parent, but that White never answered his letters.
The report, obtained in the PCR case, confirmed Hagan's account.
Hagan also claimed he told White about a possible witness, Derrick Williams, who claimed he heard F.B. brag about setting him up.
White testified that he did not investigate the restraining orders for fear it would open the door for the state to mention the terroristic threat and burglary charges initially brought against Hagan but dismissed.
White said he was not aware of the DYFS referral but would not have used it because D.B.'s credibility was so weak he did not need to.
He also said he tried to contact Williams and learned he was in prison, and the public defender representing Williams refused to allow an interview.
White claimed that his defense strategy was to attack D.B.'s credibility and portray Hagan as a man who had a healthy relationship with his girlfriend and her children and that Hagan undermined that defense when he took the stand against his advice.
Mulvihilll vacated the conviction based on ineffective assistance, finding White should have used the evidence of Hagan's child-abuse report and the restraining order and should not have been deterred from speaking with Williams, and a reasonable probability existed that the outcome would have been different if he had done so.
Appellate Division Judges Joseph Yannotti and Thomas Lyons affirmed on Aug. 7, 2009, finding "substantial credible evidence" supported Mulvihill's decision.
Hagan was retried and acquitted on March 16, 2010. By then, he had been in custody for six years, mostly at the Adult Diagnostic and Treatment Center in Avenel.
In his motion for summary judgment in the malpractice case, Hagan contended that ineffective assistance is tantamount to malpractice, that the issues had been litigated to a final judgment to which the public defender and White were privy, and that fundamental fairness barred requiring him to relitigate them.
The public defender argued against issue preclusion on the grounds that the issues — whether Hagan was guilty in the PCR case and whether White was negligent in the civil case — were not identical, nor were the parties, because White and the office were not defendants in the PCR proceeding and had no lawyers representing them.
With summary judgment granted on liability and causation, Hagan's lawyer, Cherry Hill solo Jeffrey Hark, says he has moved for lost wages under a state law that allows wrongfully convicted people to recover $20,000 for each year of incarceration, plus legal fees. He also will seek noneconomic damages.
Public Defender spokesman Tom Rosenthal referred questions to the Attorney General's Office. Its spokesman, Lee Moore, declines comment.
White, now with Morris Starkman's Cherry Hill firm, did not return a call.
Subscribe to:
Posts (Atom)
