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Although the United States Constitution and the New Jersey Constitution reflect the importance of the fundamental right to privacy, there exists a few doctrines which allow for warrantless search of a home. One such exception to the warrant requirement is the protective sweep doctrine.

Jersey-City-Criminal-Attorney-Illegal-Search-300x200The United States Supreme Court determined in Maryland v. Buie that a protective sweep made during an in-home arrest is only justified when (1) officers can, as a precaution, search areas immediately adjoining the area of arrest if they are areas from which an attack can be immediately launched, and (2) officers can look beyond those adjoining spaces if that search is based on articulable facts that would make reasonably prudent officer believe there is a threat.

Although this is the standard for when arrests are made inside of a home, what happens when an arrest is made outside of the home? Recently, the Supreme Court of New Jersey answered this question in State v. Radel and State v. Terres.

Jersey City Criminal Sentencing Judge

Sentencing Courts must carefully consider all aggravating and mitigating factors.

Following a criminal defendant’s conviction or guilty plea, a judge decides the appropriate punishment at sentencing. A sentence may include incarceration, probation, fines, restitution, community service and participation in rehabilitation programs.  However, there may be instances where a judge is able to enhance or reduce a sentence based upon factors specific to the defendant and the crime committed.

Factors that indicate higher culpability, and may result in a harsher sentence, are known as “aggravating” factors. Examples of aggravating factors are: previous convictions, attempts to conceal or dispose of evidence, use of a weapon, targeting vulnerable victims, etc.

Jersey-City-Criminal-Lawyer-Testifying-Witness--300x169Witness “impeachment” refers to the process of attacking a witness’s credibility and the accuracy of their testimony at trial. The Federal Rules of Evidence and the New Jersey Rules of Evidence both allow the impeachment of a witness’s credibility by use of their prior convictions. However, when the witness is a defendant testifying in their own trial, there are specific rules that apply to the State’s use of their prior convictions.

Under the N.J.R.E. 609,  the use of a prior conviction is limited “[i]f, on the date the trial begins, more than ten years have passed since the witness’s conviction for a crime or release from confinement for it, whichever is later.” The rule also states that when a conviction is ten years remote, it “is admissible only if the court determines that its probative value outweighs its prejudicial effect, with the proponent of the evidence having the burden of proof.”

On December 27, 2021 the Supreme Court of New Jersey decided in State v. Tywaun S. Hedgespeth that a lower court’s ruling, allowing the use of Defendant’s prior convictions for impeachment purposes was not harmless error.

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The Confrontation Clause, which is found in the Sixth Amendment of the United States Constitution, provides that “in all criminal prosecutions the accused shall enjoy the right to confront the witnesses against him”. Article 1, Paragraph 10 of the New Jersey Constitution also guarantees this right to the criminally accused.

In some cases, however, the “witness” may be the person who has prepared a document or report for submission to the court. As the Supreme Court established in Melendez-Diaz v. Massachusetts, affidavits reporting the findings of a search or analysis may be considered “testimonial” and renders the affiants “witnesses” that are subject to the defendant’s right to confrontation.

On December 27, 2021 the Supreme Court of New Jersey decided in State v. Jose Carrion that the Defendant’s Sixth Amendment right to confrontation was violated. The Court came to this conclusion based on the circumstances surrounding the submission of an affidavit prepared by a non-testifying detective which contained the results of a firearms database search.  

Jersey-City-Criminal-Lawyer-Natoli-Free-Speech--300x300On December 9, 2021 the New Jersey Appellate Division published a decision which struck down a portion of New Jersey’s terroristic threats statute.  In State v. Calvin Fair, the defendant was charged with and convicted of terroristic threats.  On appeal, Defendant argued constitutional over breadth regarding N.J.S.A. 2C:12-3(a).  Said section criminalizes threats of violence made with the purpose to terrorize another […] or in reckless disregard of the risk of causing such terror.  A three-judge panel agreed with the appellant’s arguments and struck down subsection (a).  This resulted in a reversal of Defendant’s conviction and a remand for a new trial.

In Fair, the court analyzed different opinions throughout our nation’s state and federal courts.    The court analyzed this case, in part, through the lens of the “true-threat” doctrine.  The “true-threat” doctrine recognizes that our nation has a “profound national commitment to the debate on public issues which may well include vehement, caustic and sometimes unpleasantly sharp attacks […]” as well as “vituperative, abusive and inexact language.”

The court then focused on Virginia v. Black which held that Virginia’s criminal statute did “not run afoul of the First Amendment” because it did not just ban cross burning; it banned cross burning “with intent to intimidate.”  The Court in Black held that a state can punish threatening speech or expression only when the speaker “means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”

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The United States Constitution, through the Fourth Amendment, protects against unreasonable searches and seizures by the government. Article I, Paragraph 7 of the New Jersey Constitution, however, provides even greater protections against these unreasonable searches and seizures.

Evidence obtained in violation of these constitutional protections is usually inadmissible as per the exclusionary rule. The “Fruit of the Poisonous Tree” is a legal metaphor used to describe such illegally gathered evidence and the inadmissibility of any additional evidence derived from it.

On November 3, 2021 the Appellate Division of the Superior Court of New Jersey addressed the appropriate remedy for such unreasonable searches and seizures in State v. Caronna and State v. Collado.

jersey-city-criminal-sentencing-judge-1In New Jersey, a criminal defendant’s right to a jury trial is guaranteed by both the Sixth Amendment to the United States Constitution and the State Constitution. The principles of fairness and justice are encompassed in the roles assigned to the judge and the jury. The jury, otherwise known as the “finder of fact,” is tasked with determining what happened in a specific case and how those facts are relevant to the legal proceeding. The judge, otherwise known as the “trier of law”, is tasked with making legal rulings and ensuring that legal proceedings adhere to specific guidelines.

However, there are instances in which courtroom actors confuse the role they must play.

In State v. Melvin and State v. Padden-Battle , the Defendants were sentenced by the same judge who overlooked a jury’s acquittal and made decisions based on their own “fact-finding”.

Police-ID-Hudson-County--300x200In New Jersey, the rules of evidence indicate that lay opinion testimony, which is non-expert witness testimony, is admissible when two conditions are met. First, the witness’s testimony must be rationally based on their perception. Secondly, the testimony must assist in understanding the witness’s testimony or determining a fact in issue.

However, assessing the admissibility and helpfulness of lay opinion testimony may present challenges when the potential for undue prejudice surfaces.

In State v. Sanchez , the Defendant filed a pretrial motion to exclude the lay opinion testimony of his parole officer who had identified him as a suspect in connection with a homicide and robbery investigation.

Jersey City Police Search
Over the years, thousands of motorists have been stopped for having their license plate partially blocked.  Often times, the stops are pretextual in that law enforcement’s real interest in the vehicle and its occupants is the desire to conduct a criminal investigation.  In State v. Roman Rosado and State v. Darius Carter, two individuals that had been pulled over in a pre-textual manner challenged the statute on constitutional grounds.  Rosado and Carter prevailed in their challenges.

The Supreme court ruled that N.J.S.A. 39:3-33 should be read narrowly and afford individuals whose license plates are partially blocked but otherwise legible the benefit of the doubt.  More specifically, the court stated that, “if a frame conceals or obscures a marking in a way that it cannot be reasonably identified or discerned, the driver would be in violation of the law.”  Conversely, if a phrase like “Garden State” is partly covered but still recognizable, there would be not violation.

This decision is immensely important for individuals who are pulled over in a pre textual manner only to have a subsequent investigation lead to a car search and the recovery of alleged criminal contraband.

A petition for compassionate release is typically granted to inmates who suffer from a terminal illness or profound incapacity that renders them physically incapable of committing a crime in the future.

In New Jersey, there are specific requirements that must be met prior to a court’s consideration for compassionate release. First, an inmate must present a Certificate of Eligibility from the Corrections Department indicating that two department-designated physicians have determined that the inmate suffers from a terminal condition or permanent physical incapacity that did not exist at the time of sentencing.

After such a certificate is presented, the court may grant compassionate release but only if the court has found, by clear and convincing evidence, that the inmate is physically incapable of committing future crimes and that they pose no threat to public safety.

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