Drunk Driving Defense - Mid Trial Discovery Admitted

Published by New Jersey DWI Lawyer, Jeffrey Hark.
http://www.harklawnj.com/new-jersey-dwi-lawyer/

 

June 28, 2013, the Appellate Division affirmed the drunk driving conviction where defendant unsuccessfully sought suppression of an Alcohol Influence Report (AIR) because it was submitted after discovery ended. The defendant was appealing his August 12, 2012 conviction for violation of driving while intoxicated (DWI) pursuant to N.J.S.A. 39:4-50 and sentenced to the minimum mandatory penalties for a second offender pursuant to N.J.S.A. 39:4-50(a)(2). On May 19, 2010, defendant was stopped for speeding and the officer smelled alcohol. After a field sobriety test, the defendant was taken to the police station and given a breathalyzer. Defendant had a BAC of 0.12 percent.

Alcohol Influence Report Admitted Mid Trial

At trial the State did not timely provide complete discovery of the Alcohol Influence Report and defense council moved to have any evidence not previously provided precluded. The defense’s specific objection was that the defense was forced to supply information to the State regarding the fatal weakness to which the State was then allowed to cure the deficiency. The judge allowed the State to introduce a foundational witness and a certificate of analysis for the AIR. The Appellate Division found no legal authority for the defendant’s argument that the court was required to exclude evidence based on the State’s failure to present it timely. When evidence is admitted mid trial, there are two factors to consider: 1) did the party have the intention to mislead by not providing it earlier, and 2) is the aggrieved party prejudiced by the inability to contest the evidence because of the late notice.

Without a showing of prejudice to the defense, a blanket order to preclude further discovery is appropriate. The trial judge did not abuse his discretion by allowing the State to provide the foundational document for the AIR and the police officer to authenticate the document. The defendant did not cite any case law that requiring defense council to specify what foundational documents were lacking violates the defendant’s Fifth Amendment rights, N.J.S.A. 2A:84A-17 or N.J.R.E. 501, 502, and 503. The defendant’s argument that they assisted the State with their case because the defendant had to point out the deficiencies does not support that defense of the defendant was impaired. The defense council would not have done anything different in preparation for the case had there been a complete discovery.

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.

 

Parental Influence of Child Sex Assault Case Jeopardizes Judge’s Decision

14-2-0579 State in the Interests of K.S., App. Div. Docket No. A-0970-11T4

PARENTAL INFLUENCE OF CHILD SEX ASSAULT CASE JEOPARDIZES JUDGE’S DECISION---TAINT--

 

            July 9, 2013 the Appellate Division reversed a ruling of child abuse against K.S., 11 years old at the time of the incident, for allegedly causing K.E., a nine year old, to take his pants down and touch the victim’s buttocks on three separate occasions during the summer of 2010. To convict K.S., the State must prove beyond a reasonable doubt that K.S. knowingly performed an “indecent, immoral or unlawful act or deed that may have tended to debauch or degrade K.E.’s morals.” State v. Overton, 357 N.J. Super. 387, 393 (App. Div. 2003). The Appellate Division found that the trial judge erred by admitting testimony of the victim’s mother made to her by the victim.

            Pursuant to N.J.R.E. 803(c)(27), statements made by a child about a sexual offense may be admitted after the trial judge conducts a preliminary hearing pursuant to N.J.R.E. 104(a) to determine that the statement is sufficiently reliable. Reliability is based on “time, content and circumstances of the statement...totality of the circumstances...spontaneity, consistent repetition, mental state of the declarant, use of terminology unexpected of a child of similar age, and lack of motive to fabricate.” State v. P.S., 202 N.J. 232, 249 (2010). The Appellate Division held that the trial judge failed to give proper consideration of interrogation and manipulation by adults in admitting the mother’s testimony.

            At trial, the mother testified that her son initially did not tell her about the incidents. The mother continued to question her son over the summer months to obtain more details about the incidents. The Appellate Division found the repeated questioning of the victim by his mother to discount the spontaneity of the statements by the victim. Generally the probative value of statements are stronger when the statements are blurted out rather than dragged out piece by piece over a period of months. There is no exclusive list of factors for a 104(a) hearing but the Appellate Division has emphasized identifying the statement’s spontaneity to find sufficient reliability.

Sex Crime Summary: SVP-642-12 In the Matter of the Civil Commitment of C.H., App. Div. Docket No. A-2146-12T2

This summary is not available. Please click here to view the post.

Domestic Violence Criminal Trial Summary: 14-2-0489 State v. Raimondo, App. Div. Docket No. A-0369-11T3

In State v. Raimondo at the trial level, the defendant was convicted of third-degree terroristic threats, N.J.S.A. 2C:12-3a (count one); fourth-degree possession of an illegal butterfly knife and/or a switchblade, N.J.S.A. 2C:39-3e (count two); a fourth-degree certain persons weapons offense, N.J.S.A. 2C:39-7a (count three) and petty disorderly persons offense of harassment.  The case arises out of a domestic violence call. On or about April 22, 2010, the defendant and his wife had a verbal argument that resulted in defendant’s wife seeking a temporary restraining order (TRO) when the defendant threatened he was going to ‘shoot his wife.’  The arrest and weapons seized resulted from a search for the alleged gun the defendant was to shoot his wife with.  The TRO search revealed two rifle rounds, a butterfly knife and a switchblade.   The knives were found in a box against the wall with a pile of other boxes with either a ‘knife’ label or picture thereon.  Prior to trial the defendant’s motion to suppress the knives found from the TRO search was denied. He was subsequently convicted of these weapons offenses.

            On appeal the Appellate Court reversed the weapons convictions based on several errors of the trial court. The Appellate Division found the search violated N.J.S.A. 2C:25-28j and Article I, paragraph 7 of the New Jersey Constitution and the Fourth Amendment of the United States Constitution that require “probable cause.”  The court further relied upon  State v. Masculin, 355 N.J. Super. 250 (Ch. Div. 2002), which established the immediate apparent illegality doctrine.  The court’s inquiry addressed whether, when the officer seized the box with the weapons in them, was it ‘immediately apparent’ to that officer that the weapons were illegal. Id. at 586-87.  The court ruled that, based on the record, the State failed the “immediately apparent” test and the trial court should have suppressed the weapons.  The second plain error requiring reversal was the jury charge on terroristic threats.  The Appellate Court determined when the trial court included “kicking” and “punching” in the same charge as “shooting” and “killing” the jury was allowed to convict the defendant of terroristic threats to commit a simple assault.

This decision by the Appellate Division reaffirms that search and seizure of weapons under a domestic violence warrant limits evidence in a subsequent criminal trial to the “immediately apparent or whether a further search was required to determine illegality” as established in Harris. State v. Harris, 211 N.J. 566, 587 (2012). The record in State v. Rainmondo indicates the police were looking for guns, not knives and unsure if the knives were illegal. The knives found in Defendant Raimondo’s residence were not immediately apparent to the police and therefore not admissible in the subsequent criminal which was unrelated to the search for a gun which was the sole basis of the TRO and TRO search.

Pubished by domestic violence criminal lawyer, Jeffrey Hark.

Summary - 14-2-0509 State v. Marcano, App. Div. Docket No. A-1021-12T3

Summary of the prescription drug case involving professional license defense.

 

In the recent July 2, 2013 decision in State v. Marcano by the New Jersey Appellate Division, the Court reversed the trial court’s decision to exclude testimony by a key witness against the defendant, Frances Marcano. On October 26, 2010, Dr. Tadeusz Majchrazak reported to Jersey City Police that Marcano presented a pharmacy with a prescription for Percocet on Majchrazak’s prescription script that Dr. Majchrazak did not prescribe to the defendant. A few days before the forged script was presented to the pharmacy, the defendant had requested Dr. Majchrazak to prescribe Percocet and Dr. Majchrazak refused since the defendant was seeing a pain management specialist for pain.

Statute N.J.A.C. 13:45A-27.(d) required Dr. Majchrazak to report the forgery to the authorities, however the defendant argued that the conversations days before the forgery with Dr. Majchrazak were privilege and filed a motion in limine. The trial court granted the defendant’s motion in limine to limit Dr. Majchrazak from testifying to the conversations days before the forged script was presented to the pharmacy. The trial court found that public policy wanted to protect the doctor-patient privilege to keep lines of communication open and prevent a possible chilling effect if the doctor was to report prior conversations with the defendant regarding the medication. The trial court was not satisfied the defendant’s prior conversations with the doctor were “in furtherance of a criminal purpose.” People v. Sinski, 669 N.E. 2d 809 (N.Y. 1996).

The Appellate Court reversed, finding that the physician-patient privilege does not bar defendant's doctor from testifying regarding defendant's efforts to obtain a prescription for Percocet during an office visit. Privileges are statutory creations that advance a societal interest, but are narrowly construed. State v. Schreiber, 122 N.J. 579, 582 (1991). When the privilege is faced against other competing rights, the Court finds “the privilege yields.” State v. Marcano, (App. Div. 2013). The Court’s interpretation of N.J.S.A. 2C:35-17 is that information communicated to a practitioner to unlawfully procure administration of a controlled dangerous substance shall not be a privileged communication. The trial court believed Marcano’s efforts to have his doctor prescribe Percocet was not unlawful; only Marcano’s efforts when he presented a forged script were unlawful. The Appellate Court decided that Marcano’s efforts to have the doctor to prescribe Percocet were unlawful therefore lowering the standard that bars a conversation under physician-patient privilege.

 

Prescription drug case summarized by New Jersey Drug Lawyer, Jeffrey Hark.

 

 

Charitable Immunity Case Outline

Three prong test to determine if Charitable Immunity Act is applicable:

1) the entity is a non-profit;

2) was organized exclusively for religious, charitable or educational purposes; and

3) was promoting such objectives and purposes at the time of the injury. 

 

Prong three is further broken down to determine a party is a beneficiary of the “works” of a charity, under the Charity Immunity Act:

(1) the institution pleading the immunity, at the time in question, was engaged in the performance of the charitable objectives it was organized to advance, and

(2) the injured party must have been a direct recipient of those good works.

Ryan v. Holy Trinity Evangelical Lutheran Church, 175 N.J. 333, 815 A.2d 419 (2003).

 

Courts have a broad interpretation of function “although a church's main purpose may be to provide a place of worship and spiritual guidance, [its] function is not so narrowly confined. It is not limited to sectarian teaching and worship. In [the] modern view, exercises designed to aid in the advancement of the spiritual, moral ethical and cultural life of the community in general are deemed within the purview of the religious society. A social center is now commonly regarded as a proper adjunct of the local church-conducive to the public good, as well as advantageous to the congregation.”  Loder v. St. Thomas Greek Orthodox Church, 295 N.J. Super. 297, 302, 685 A.2d 20, 23 (App. Div. 1996).

However, the Court limits function in Beicht v. American Polish Veterans, Inc., the renting of a space for a bridal shower was “unrelated” and the entity was not protected by the Charitable Immunities Act. When the organization makes its premises available for an activity unrelated to such an undertaking, it is not functioning within the parameters of its immunity.”  Beicht v. Am. Polish Veterans, Inc., 259 N.J. Super. 79, 81, 611 A.2d 168, 169 (Ch. Div. 1992). In Beicht v. Am. Polish Veterans, 259 N.J.Super. 79, 82 (Law Div.1992) (denying charitable immunity to a fraternal organization because “[f]raternal societies or those organizations whose purpose is to promote the welfare of their members are benevolent, but not charitable”).

In Loder, the event was a sponsored event and in Beicht, the event was non-affiliated and unrelated with the entity.

Was the event Felicia Cannon attended an affiliated event of St. Anthony’s? Was the event at St. Anthony’s a church sponsored event?

Other than being called a Christmas party were religious or charitable elements present?

Did invitees pray? Were blessings exchanged before consuming alcohol? If a youtube of this party was compared to a youtube of a party at a private club would there be any difference?

Does St. Anthony’s have 503(c)1 status? Federally funded? State funded?

If the event was NOT affiliated or sponsored the Act does not apply.

Even if the event was affiliated, immunity should not be granted to St. Anthony’s. This event lasted until about 1 am, when police ended the event due to fights; the behavior exhibited at the event was not conducive to the social good, advantageous to the church, or aiding in the advancement of the cultural life of the community. Therefore, the event should be considered outside the very broad and accommodating function the Court has set forth in case law rather than rewarding behavior clearly against the public policy of the Act.

If an organization falls under Charitable Immunity Act, three possible exemptions to immunity; 1) gross negligence or willful or wanton misconduct; 2) employment law claims are not protected by immunity laws; and 3) charitable immunity does not apply in lawsuits alleging sexual abuse.

Illegal behavior and unlicensed alcohol does not bar protection under the Charitable Immunity Act. In Orzech v. Fairleigh Dickinson University, 411 N.J.Super. 198, 985 A.2d 189 (A.D.2009), student's conduct in violating university's alcohol policy by holding a party in dormitory in which alcohol was served to minors did not alter student's status as a beneficiary of university, and thus university was entitled to charitable immunity in family's wrongful death claim against university after student fell out of dormitory window while intoxicated and died.

Source of revenue, fees compared to donations, does not determine charitable status. Auerbach v. Jersey Wahoos Swim, 368 N.J.Super. 403. (App. Div. 2004). However, if non-profit is simply a conduit for governemnt funds such as a quasi-public sponsor of federally funded housing project, (Parker v. St. Stephen's Urban Development Corp., Inc., 243 N.J.Super. 317 (A.D.1990))  was not a private charity entitled to charitable immunity status.

 

Posted by criminal law attorney, Jeffrey Hark

New Jersey Overdose Prevention Act

Read about the recently passed Overdoes Protection Act and how it may impact you if you have recently been charged with a drug crime in New Jersey.

Posted by New Jersey Drug Lawyer, Jeffrey Hark