EFFECTIVE CRIMINAL DEFENSE: LEGAL MALPRACTICE

July 16, 2013

State v. Headley, App. Div. A-4256-11T2

EFFECTIVE CRIMINAL DEFENSE LEGAL MALPRACTICE MOTION TO SUPPRESS INCULPATORY STATEMENT WITHOUT MIRANDA WARNINGS SHOULD BE SUPPRESSED!!

July 12, 2013, the Appellate Division reversed and remanded the trial court and Law Division conviction of Junior A. Headley for possession of burglary tools. On June 28, 2011, the defendant was stopped by Sergeant Kopesky in plain clothes and an unmarked car because he matched the description of a black male, wearing a tee shirt and jeans, riding a bicycle on Ivy Lane casing houses. Sergeant Kopesky questioned the defendant about the tools in his back pocket, to which the defendant stated were for his bike, then changed his answer to a construction job and then changed his answer again that he was working at a nearby church. Police determined the tools did not fit the bike, there was no construction job and police located the church that defendant worked for but according to church administrators the defendant was not there earlier.

To uphold a conviction pursuant to N.J.S.A. 2C:5-5 possession of burglary tools and specific intent to use tools to steal property is required. The trial court convicted the defendant based his possession of the burglary and the defendant’s inconsistent stories based upon hearsay testimony from Sergeant Kopesky. On appeal to the Law Division, the Law Division judge acknowledged the merit of the Miranda issues but declined consideration because he did not have authority to reverse. Pursuant to Rule 7:5-2(d) the defendant waived his right to object during trial to evidence that was unlawfully obtained when the defendant did not file a suppression motion before the trial.

The Appellate Division reverses because the Law Division judge can “for good cause shown” remand for retrial and erred by not recognizing his authority to reverse and remand. State v. McLendon, 331 N.J. Super. 104, 109 (App. Div. 2000). Also the Appellate Division reverses because although the defendant failed to adequately explain himself to the officer, the failure to give a good account of oneself cannot be made an essential element of a crime nor be proof of an unlawful purpose. The Law Division should also review the hearsay testimony admitted for a Sixth Amendment violation even though no objection by defense at trial. The take away from this case is that the law Division may reverse a case, even when the defense filed no suppression motions pre-trial or made objections at trial, if the reviewing Law Division judge finds “good cause,” such as constitutional issue.