Criminal Defense

Change to N.J.R.E. 609 Possibly On Its Way

August 5, 2013 by Greg Sutphin

Soon New Jersey defendants in criminal trials may not have to worry quite so much about convictions ten years older or more being used against them. In a move poised to bring New Jersey more in line with the Federal Rules of Evidence, the state Supreme Court is looking to change New Jersey Rule 609 to make it so that convictions that are at least ten years old cannot be used to impeach a defendant’s credibility unless their probative value outweighs their prejudicial effect.

Presently, N.J. Rule 609 does not make any explicit distinction regarding the age of prior convictions. Instead it simply allows prior convictions “unless excluded by the judge as remote or for other causes.”

The New Jersey Supreme Court Committee on the Rules of Evidence approved the change, which was first proposed by one of the subcommittees. It is now being taken into consideration by the state Supreme Court which can choose to adopt the modification or keep the rule the way it is.

Can Police Legally Track You Down Using Your Cell Phone?

July 22, 2013 by Greg Sutphin

Every seven seconds your cell phone registers itself with the nearest cell phone tower. This means that every seven seconds your phone, while turned on, is giving your cell phone company your location to an increasingly specific degree.

The New Jersey Supreme Court took on State v. Earls, 2013 N.J. LEXIS 735, to decide whether people have a constitutional right of privacy to the location information that their phone releases. In Earls, the police obtained the location of defendant Earls using the signals his phone gave off to nearby cell towers.

The trial court ruled that the police needed a search warrant, which they did not have, to obtain Earls’ location through his cell phone provider. However, the court found that an exception to the search warrant requirement applied, thus allowing the prosecution to use the evidence of defendants location against him. The appellate court agreed with the trial court’s ruling to allow the evidence, but disagreed that the police even needed a search warrant in the first place.

The N.J. Supreme Court overruled the lower courts’ holdings. The Court found that “individuals have a reasonable expectation of privacy in the location of their cell phones under the State Constitution.” Id. at 11. The Court went on to further clarify that despite the importance of this type of information for purposes of deterring crime, and prosecuting defendants, that police must obtain a valid search warrant based on probable cause, in order to obtain the location information which your cell phone is constantly emitting.

Police Officers Will Now Need a Warrant, or Meet an Exception to the Warrant Requirement, in Order to Blood Test DWI Suspects

July 8, 2013 by Greg Sutphin

The fact that the human body naturally metabolizes alcohol in the blood does not automatically constitute exigent circumstances for the Fourth Amendment search warrant exception.

In Missouri v. McNeely, 133 S. Ct. 1552 (2013), the U.S. Supreme Court held that whether an officer is permitted to require a blood test of a suspected drunk driver must be determined on a case by case basis. In the McNeely case, the defendant had refused to submit to a breathalyzer test after failing field-sobriety tests. The officer who pulled him over then took him to a hospital where a blood test was performed without McNeely’s consent or a search warrant.

McNeely filed a motion to suppress the results of the blood test, which had determined his BAC (blood alcohol concentration) was almost double the legal limit. The trial court granted his motion to suppress due to his lack of consent and a warrant, saying that the typical circumstances of the body processing alcohol did not qualify as exigent circumstances under the established Fourth Amendment exception. The trial court determined that there was no reason the officer could not obtain a warrant first. The Missouri Supreme Court affirmed the lower court’s decision.

The exigency exception “applies when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment.” Kentucky v. King, 131 S. CT. 1849, 1856 (2011).

The U.S. Supreme Court discussed how the metabolization of alcohol is a predictable process, and further how taking suspected drunk drivers to a place where a blood test can be performed requires time. In fact, likely the same kind of delay that would be necessary in order to obtain a search warrant. All of this was considered in the context of how technology enables officers to obtain warrants quicker and easier than ever before. In situations where true exigent circumstances do exist, the Court found that no warrant will be required. Trial courts will now have to decide on a case by case basis whether exigent circumstances exist in order for law enforcement to circumvent the warrant requirement when taking the blood of suspected drunk drivers to determine their BAC levels.

Items in Plain View in Car May Not Require Search Warrant

June 20, 2013 by Greg Sutphin

The plain view exception to the search warrant requirement can be applied to warrantless searches of vehicles according to the New Jersey Appellate Division in State v. Reininger, WL 2149760 (May 20, 2013) .

Dustin Reininger was asleep in his SUV while parked in a Wachovia Bank parking lot at around 3:00 in the morning. Readington Township Police Officer Gregory Wester drove by and noticed Reininger in his vehicle. Wester approached Reininger who had trouble answering questions and could only provide a Texas driver’s license without vehicle registration or proof of insurance.

Wester saw that Reininger had a number of things sitting in the backseat of the car and asked if there was anything illegal or any firearms in the pile. Reininger told him there wasn’t, but the officer could see nylon firearm cases among the items.

After asking a second time if there were any firearms in the car, Reininger admitted he did have some firearms he was transporting to Texas which were registered in that state. Wester asked for consent to search the car and Reininger denied his request. Despite this, the officer went ahead and opened the back door and removed the two nylon firearm cases, claiming he did so for safety reasons.

Later on, Wester got a search warrant for the vehicle and discovered twenty-one different firearms as well as different types of ammunition.

Before trial, Reininger filed a motion to suppress evidence obtained without a search warrant, which the trial court denied. The New Jersey Appellate Division affirmed the ruling under the plain view exception.

This exception requires “the police officer must be lawfully in the viewing area, the officer has to discover the evidence ‘inadvertently,’ meaning that he did not know in advance where evidence was located nor intend beforehand so seize it, and it has to be ‘immediately apparent’ to the police that the items in plain view were evidence of a crime, contraband, or otherwise subject to seizure.” State v. Bruzzese, 94 N.J. 210, 236 (1983).

According to the Court, Wester satisfied all the first two requirements because he was lawfully conducting a field inquiry and had no idea Reininger had anything in the car when he first approached. The third requirement was also satisfied because Reininger denied have firearms in the car then changed his answer to say that he did have them, but was transporting them to Texas, the Court found that the officer had “probable cause to believe that defendant possessed firearms in violation of the law.”

Thus, the trial court’s denial of the motion to suppress was affirmed.

Penalties for Violating Probation

May 23, 2013 by Greg Sutphin

Between March 11 and March 14, Hunterdon County sheriff’s officers arrested three different people for violation of probation warrants. Each person was promptly returned to jail and held without bond pending a court appearance.

Probation is a more lenient alternative to incarceration that is available for lower-risk criminal offenders, which allows them to serve their sentences in the community under probationary supervision rather than being sentenced to incarceration or serving time in jail. Various terms and conditions apply to probation arrangements in New Jersey. These include, but are not limited to, regular appointments with the offender’s probation officer, curfews, random drug and alcohol testing, monthly payments, electronic monitoring, community service, counseling or education and employment requirements.

To avoid a revocation of probation, strict rules must be followed while a person is on probation. If a person is caught in violation of probation, their probation can be revoked, causing their sentence of incarceration to be activated and enforced or the imposition of stricter probation conditions. However, the penalties to be imposed depend on the seriousness of the probation violation.

Gregg A. Wisotsky, Esq., Partner, Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, PC, offers a free phone consultation at 973-898-0161 to discuss your situation. In more than 25 years of criminal defense experience in Morris County and northern New Jersey, we have favorably represented many clients in violation of probation or parole hearings.

Marital Communications Privilege Can Protect Against Wiretaps

May 20, 2013 by Greg Sutphin

Text messages and cell phone calls between a husband and wife intercepted by police wiretaps are protected by the marital communications privilege. State v. Terry, 2013 N.J. Super. Lexis 71.

Teron Savoy was a top drug dealer in Monmouth and Ocean counties. His wife, Yolanda Terry, sometimes helped him with his business, picking up payments due, etc.

After arresting and charging Savoy with a litany of offenses, including being a leader of a drug trafficking network and possession of heroin with intent to distribute, the state said it had texts and phone conversations between the husband and wife to use as evidence. Savoy argued that the marital communications privilege forced the exclusion of these items.

At the trial court level, the judge found that wiretap officers overhearing marital communications could testify about them and that there was a crime–fraud exception to the privilege.

The Appellate Division disagreed and overturned the lower court’s decision on a number of grounds, but also rejected Savoy’s argument that the State did not even meet the threshold requirements to be allowed to wiretap his cellphone.

In rejecting Savoy’s argument, the Court found that “special needs” is usually the standard, under the New Jersey Wiretap Act, required to wiretap a marital home. However, it found that this standard does not apply to cell phones even if it is used to talk to a spouse.

The Court continued that while the marital communications privilege is nullified if the communication is “overheard either accidentally or by eavesdropping,” that is not applicable here. The Wiretap Act specifically states, “No otherwise privileged wire, electronic, or oral communication intercepted…shall lose its privileged character.” N.J.S.A. 2A:156A-11

Finally, the Court dismissed the crime-fraud exception (communication aiding in the commission of a crime) as inapplicable as well. It found that the exception does not exist in New Jersey statutes, and neither itself or the trial level court had the power to create it.

What Constitutes Criminal Mischief?

May 8, 2013 by Greg Sutphin

A 19-year old man was recently arrested and charged with criminal mischief and disorderly conduct in Sussex County when he allegedly emulated an Internet supermarket prank, the “Gallon Smash,” at a local Shop-Rite grocery store. The alleged prank involved the young man smashing two gallons of milk on the ground and then falling as if it were an accident. Shop-Rite employees did not originally suspect the incident was intentional; however, the young man’s friends allegedly filmed the incident and the video was later found posted on Facebook.

Police nationwide are aware of this “Gallon Smash” trend and are prepared to enforce the law, regardless of whether the primary intention is to cause harm or damage.

Criminal mischief is defined under N.J.S.A. 2C:17-3 as when an individual purposely or knowingly damages tangible property of another or purposefully or recklessly tampers with another person’s tangible property to endanger the person or property. Criminal mischief is a crime of the third degree if the actor purposely or knowingly causes pecuniary loss of $2,000 or more, or a substantial interruption or impairment of public communication, transportation, supply of water, gas or power, or other public service. Criminal mischief is a crime of the fourth degree if the actor causes pecuniary loss of more than $500. It is a disorderly person offense if the actor causes pecuniary loss of $500 or less.

At the law offices of Gregg A. Wisotsky, Esq., Partner, Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, PC, we have more than 25 years of criminal defense experience and can handle the defense of any matter in the municipal courts. We firmly believe in the axiom that you are innocent until proven guilty, and we will aggressively protect your rights throughout the criminal process. Because of our considerable experience, we know that innocent people are wrongfully prosecuted, that many criminal defendants are charged with far more offenses than they have committed and that everyone, guilty or not, deserves to be treated fairly under the law.

At our office, every client receives a free phone consultation. Call us at 973-898-0161 or contact our office by e-mail to set up a private meeting.

5th Amendment Protects Against the Forced Turnover of Incriminating Evidence

April 22, 2013 by Greg Sutphin

A Trenton police officer who allegedly used a flashlight to injure people during a fight outside of a Trenton bar cannot be forced to turn over the flashlight. The New Jersey Appellate Division found that compelling the officer to turn over the evidence would violate his 5th Amendment right against self-incrimination.

In the first hours of the morning on January 17, 2011, police received reports of a large brawl occurring outside of a bar in Trenton. At the time there were no arrests made in connection with injuries caused to victims.

The next day, however, the father of one of the victims alerted police that off-duty Trenton police officers were involved in the brawl. An internal investigation ensued and the Defendant, Mylon Kelsey, was identified by witnesses as having taken a black flashlight from his car and knocked people’s heads with it during the fight.

Police searched Kelsey’s car and found an empty flashlight box inside, but were unable to locate the flashlight itself. Hence, they turned to the courts to try to compel Kelsey to hand over the flashlight.

Initially the trial court agreed with the State in forcing him to hand over the evidence, but upon reconsideration, reversed its decision. The Court distinguished other types of evidence such as urine and blood samples, which courts regularly compel defendants to turn over, from the flashlight, explaining that those types of evidence are for identification and comparison uses. The flashlight, on the other hand, is “inherently incriminating” according to the trial court.

The Appellate Court agreed with the trial court’s decision after reconsideration and cited In Re Addonizio, 248 A.2d 531 (1968) saying, “the right against incrimination protects a defendant from ‘being subpoenaed to produce the gun or the loot, no matter how probable the cause, for the Fifth [Amendment] protects the individual from coercion upon him to come forward with anything that can incriminate him.”

What Is the Graves Act?

April 8, 2013 by Greg Sutphin

On March 17, 2013, Newark police arrested several men, all with significant criminal histories, for various weapons offenses. One incident involved a 34-year-old man who was spotted by police in the stairway of a building holding a .45-caliber gun. The man attempted to discard his gun and run away but was later captured by the police and found in possession of at least $1,000 worth of heroin. The man, already a convicted felon, has previously been arrested for possession of explosives and other weapons offenses, carjacking, aggravated assault and assault on a police officer.

The state of New Jersey has enacted some of the nation’s most oppressive gun laws and regulations. Most notably of these laws is the “Graves Act,” N.J.S.A. 2C:43-6c, which requires the imposition of a minimum term of imprisonment and parole ineligibility upon conviction for certain gun-related crimes. The Graves Act was amended in 2008 to significantly broaden the scope of the statute’s application. Prior to the 2008 amendment, the Graves Act applied only when a person was convicted of possessing or using a firearm in the course of committing certain predicate crimes, or possession of a firearm for an unlawful purpose in violation of N.J.S.A. 2C:39-4a. However, following the 2008 amendment, the Graves Act also applies to various possessory firearm crimes, including:

Unlawful possession of a machine gun, handgun, rifle or shotgun in violation of N.J.S.A. 2C:39-5a, b, or c;
Possession of a sawed-off shotgun in violation of N.J.S.A. 2C:39-3b;
Possession of a defaced firearm in violation of N.J.S.A. 2C:39-3d;
Possession of a firearm while committing a drug distribution or possession with intent to distribute offense in violation of N.J.S.A. 2C:39-4.1a;
Possession of certain weapons by persons previously convicted of specified offenses, in violation of N.J.S.A. 2C:39-7a or b (2);
The manufacture, transport, or disposition of a machine gun, sawed-off shotgun, or assault firearm in violation of N.J.S.A. 2C:39-9 a, b, or g;
The defacement of a firearm in violation of N.J.S.A. 2C:39-9c.

A person who is convicted of any of the above firearms crimes must be sentenced to a term of imprisonment and minimum term of parole ineligibility fixed at, or between, one-third (1/3) to one-half (1/2) of the sentence imposed, or three (3) years, whichever is greater, or eighteen (18) months in cases involving crimes of the fourth degree. More stringent sanctions are imposed, however, on a person who has previously been convicted of certain firearms offenses. Pursuant to N.J.S.A. 2C:44-3(d), a person who is convicted of a Graves Act offense and has previously been convicted of certain firearms offenses must be sentenced to a mandatory extended term of imprisonment. Moreover, the sentence imposed must include a minimum term of parole ineligibility fixed at or between one-third (1/3) to one-half (1/2) of the extended term sentence, or five (5) years, whichever is greater.

If you are charged with a gun crime or facing weapon enhancements on another crime, you need an attorney familiar with the special laws that can affect the outcome of your case. We have handled many of these cases in 25 years of criminal defense practice in New Jersey.

We can answer your questions and effectively represent you on these very serious charges. Call us at Gregg A. Wisotsky, Esq., Partner, Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, PC at 973-735-0232 for a free phone consultation.

How Difficult Is It to Get My Criminal Record Expunged?

March 13, 2013 by Greg Sutphin

The Steps You Need to Take to Get Your Record Expunged

If you are applying for a job and you have an arrest record (even if you weren’t convicted), you may be disqualified for consideration. A felony conviction in New Jersey, or even an arrest, can hamper efforts to adopt a child, prevent you from getting a firearms identification card or keep you from coaching youth sports. You can, however, seek to “expunge” your record, so that it is no longer available as part of the public record. If you want to put your past behind you, I can help. Gregg A. Wisotsky, Esq., Partner, Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, PC, has more than 25 years of experience handling a wide range of criminal matters, including the expungement of criminal records. We offer a free phone consultation to every new client. Call us at 973-898-0161 or contact our office online for a private meeting.

How Do You Qualify for Expungement of a Criminal Record?

In New Jersey, there are several factors that a court can consider when ruling on a request for expungement. Among the criteria the court will consider are:

The nature of the crime — The more serious the crime, the less likely it will be expunged. Some crimes, such as murder, sexual assault and other violent crimes, are generally not subject to expungement
Were you only arrested, or were you convicted?
Was this your only conviction for this offense?
What was your sentence, and did you fully serve your sentence and meet all other requirements, including the payment of any fines?
Have you previously had crimes expunged?
Are there any charges pending against you?

The statute also establishes waiting periods for expungement of different types of crimes. In most situations, a felony may only be expunged after 10 years. Misdemeanors require a five-year wait, and municipal infractions cannot be expunged for two years.

Contact Us

We offer a free phone consultation to every prospective client. For a complimentary evaluation of your case, contact our office online or call us at 973-898-0161. We will come to your home or the hospital to meet with you, if necessary. All major credit cards are accepted.

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