New Jersey Criminal Lawyer Blog

Lawrence Taylor pleading "not guilty" to an indictment reportedly alleging that he and teenager had sex is certainly newsworthy. His past is certainly checkered. Legally speaking, however, regardless of the caliber of his attorney, an arraignment is really a non-event. It will get big headlines, but a defendant has two options: plead "guilty" or "not guilty." There is nothing else a defendant may say at an arraignment. Thus, if a defendant pleads "guilty," the case is over and the Judge will schedule him for sentencing. In the alternative, if a person pleads "not guilty" the Judge will inform him of his rights and then tell him when their next Court appearance is required.

An arraignment is significant if a person does not have an attorney as it would be the time that the court would inform them of pending charges, allow them to plead either "guilty" or "not guilty." If he pleads "not guilty" and is indigent, this would be the time the public defender's office would receive the case. At this point, the defense counsel may receive their first indication of a potential plea bargain with the prosecutor's office; however, this is just one step in the criminal process. Taylor will appear again in court for status conference long before any trial is scheduled to occur.

A purpose of an arraignment is merely for the State to inform an individual on the record what the charges are pending against him, following a police investigation and grand jury indictment. If a police investigation culminates in allegations of a crime, the State submits that evidence gathered to a Grand Jury. The Grand Jury is a closed proceeding where only the prosecutor is present. Witnesses and law enforcement provide testimony to those sitting on the jury, and then the grand jury determines whether or not to indict an individual of the alleged crime. It is a very low standard; it does not mean that the evidence meets the high "beyond a reasonable doubt" standard, but only that the prosecution is given the opportunity to try the case against the defendant. Once the Grand Jury chooses to indict, an arraignment is the next step. The purpose of an arraignment is for the court to formally read the indictment to the Defendant and inform them of their rights. If a person is out on bail since the police signed criminal complaints against them, the bail will normally be continued. If a person is already in jail, he will most likely remain there unless bail was lowered or he somehow obtained the ability to pay for or post bail.

In this case, even if a plea bargain is reached, the drama for L.T.'s legal battle has yet to come, for sure.

Whether it is New Jersey or California, a Municipal Court judge may order a person to serve jail time. In New Jersey, the longest a person can be sentenced to serve in jail is 180 days in Municipal Court. Naturally, jail time is not common for municipal offenses, outside of a mandatory sentence for a third DUI offense. The key word in all of this is "may," because the law does give a judge the authority to order jail time for things such as disorderly persons offenses. The statute puts a cap on the amount of time, but as anyone would imagine, most people do have an aversion to any prison time.

Lindsay Lohan makes the news by being sentenced to 90 days jail time because, despite her exquisite display of tears and remorse, she has blatantly disregarded the prior court orders. She has missed court dates and failed to comply with terms of her probation, and further, she has erred more than once. Lets hope the jail time is a wake up call to Ms. Lohan, even if she is released after serving a fraction of her jail sentence. If the wake-up call hits, perhaps her mandatory in-house substance abuse rehabilitation following jail might have a shot at being effective.

A developing story as Jeremy Green of ESPN has been arrested in Connecticut on charges of first-degree possession of child pornography, possession of narcotics and possession of drug paraphernalia. As of the date of the story, Green was in custody on $750,000 cash bail. Green worked as an NFL analyst for ESPN, and is the son of former NFL Coach Dennis Green.

The amount and nature of the bail set indicates that Green is facing serious charges of child pornography. Criminal charges are organized according to degree, and the first degree means that alleged crime is the most serious offense under the applicable statute. In New Jersey, the relevant law also places the burden on the defendant, or the person charged with these illicit materials, to provide the defense. This does not mean that he is presumed guilty unless he can prove otherwise, but it makes it very difficult to exploit gray areas of the law. For example, any person that presents the appearance of being under the age of 16 is assumed to be under 16 and it is not a defense for one to claim that he "thought" the person in question was older than 16. Therefore, it is a strict liability offense with limited defenses available. Unlike many other media personalities, Mr. Green's offense is not merely embarrassing but disturbing. It is a crime that has cost him his ESPN job. Even with an excellent defense attorney, he will likely face significant prison time unless new facts emerge.

Ever wonder if the jury on a criminal trial is aware of the potential punishment the defendant faces if they convict? Here's some interesting case law on the subject.
1. State v. Carswell, 303 N.J.Super. 462 (App. Div. 1997) - It is well established that "jurors decide the facts in accordance with the law as instructed by the court, and the court determines the punishment to be imposed upon the finding of guilt." It is also well established that because a jury has no sentencing function, "it should be admonished to 'reach its verdict without regard to what sentence might be imposed.'" "Trial by jury in criminal cases in NJ and other states traditionally requires separation of the functions of a jury and the court in non-capital cases." Thus, a general rule has emerged that jurors are not to be informed as to the possible sentence of a defendant. [citations omitted]
This traditional rule is based upon the rationale that informing the jury would: (1) draw attention away from their chief function - to judge facts; (2) open the door to compromise verdicts; and (3) confuse the issue or issues to be decided. Another suggested reason is that the instruction is simply of no aid to the jury in determining one's guilt or innocence. [citations omitted]
2. State v. Cooper, 151 N.J. 326 (1997) - overruled State v. Brown, 138 N.J. 481 (1994) in that a guilt phase jury does not have to be instructed on potential sentences for non-capital offense. The Court refers to this as the "Ultimate Outcome Charge in Guilt Phase." The only time it appears permissible to inform the jury of the potential penalties is during voir dire.
3. 23A C.J.S. Criminal Law, Sec. 1868 - Even in the event that a jury asks questions concerning the punishment that will be imposed if the defendant is convicted, the court should remind the jury that it should reach its verdict without regard to what sentence will be imposed. If the jury makes a recommendation for mercy, the court should remind the jury that the recommendation is not binding, the jury has no sentencing function, and the jury should reach its verdict without regard to the sentence.
4. Stein, Closing Arguments 2d, Sec 1:87 - If the disposition of the sentence is for the court, and the jury has no concern in meting out punishment, discussion of that matter is not proper during argument. Neither the prosecution not defense can refer to sentencing possibilities of the court should certain verdicts be found, or of the court's ability to place the defendant on probation, and the defense is also prohibited from informing the jury of possible sentences that the defendant would face if convicted.
A skilled defense attorney is aware of this fact and will incorporate this factor into his or her litigation strategy.

An arrest has reportedly been made of a high school senior, who is charged with third-degree aggravated criminal sexual contact and third-degree criminal sexual contact, which allegedly occurred in Seaside Heights, following his prom in northern New Jersey. It is said that the 18 year old woman was incapacitated when she was victimized in a hotel, meaning she was indisputably unable to or did not give consent and anything that may have transpired was not consentual. The young man, who is in the U.S. on a student visa from Zimbabwe, is being held on $125,000.00 bail in Toms River and has been relieved of his passport.

The fact that Mr. Kabete is on a visa makes his potential trouble even more severe for him since he can be deported if he is convicted with a crime. If he cannot make bail, Mr. Kabete will be sitting in jail for a while, since this matter will have to present for indictment with the grand jury. If the grand jury returns an indictment, he will then have to be arraigned, which means he must plead guilty or not guilty. This is the stage at which a public defender would enter the proceedings, unless Mr. Kabete can afford to hire a private attorney. After an indictment and at the arraignment, the law requires someone to be represented by a lawyer, assuming he hasn't chosen to represent himself. Mr. Kabete has no such right at this time and will have a long process to get there if the reports prove to be true. It is clear, however, that his interests would be best served by the counsel of a skilled attorney who has experience with these types of charges.

Details have yet to be provided, and the victim's identity continues to be protected due to age and the nature of the crimes. These charges can include a wide array of conduct involved with an act of sexual penetration such as use of a weapon, physical force, threats, the aid of another person, severe personal injury, or it coincides with assault on another. The severity of the charges remains to be seen, but the occurrence of this sort of crime is a huge fear often associated with risky behavior surrounding proms. It should serve as a warning, with weeks left in the prom season. If you find yourself in any way related to a similar occurrence, it is in your best interest to contact an attorney.

More legal troubles for Johnny Jolly, defensive end for the Green Bay Packers. The key issue in this matter is that Mr. Jolly is out on a bond with pending criminal charges against him. When a person is arrested they have to post bail. Bail can have many different restrictions, and it is often newsworthy when a high bail is set, or a celebrity is released after posting a large sum of money. When arrested on the most minor criminal charges, most people are 'release on their own recognizance" (R.O.R.), meaning they are free to go but agree to appear in court at a set time and date. The Judge may very likely issue a warrant for arrest if you fail to appear at that predetermined time. Lindsay Lohan has had recent problems in this regard as well, stemming from criminal charges in California.

Mr. Jolly's charges appear to have been more significant, and as such, he was forced to post money in order to be released. The amount of money is usually commensurate with the nature of the crime and degree of flight risk of defendant. Flight risk doesn't mean someone who will not be present in the area, but rather, someone who may run from these charges and be difficult to find. Mr. Jolly would be a very low flight risk due to his employment in the N.F.L. As a team member of the Green Bay Packers, he could be easily located if he ever failed to appear at a court proceeding. And since the defendant has criminal charges pending against him, the Judge can put conditions on the bail. Here, the Judge appears to be unhappy that Mr. Jolly continues to be frequenting night clubs with alcoholic beverages present, and has "grounded" him while this case is still pending. Once the case concludes, the Judge no longer has a right to control Mr. Jolly's conduct. But until that time, Mr. Jolly must obey the Judge's orders or find himself explaining to the Judge why he cannot comply with the conditions of his bail. Even the best defense attorney would have difficulty with the case, if he continues to brazenly disregard the Judicial system.

This Georgia attorney practices tax law, but he now will get an education in criminal law. According to his website, Mr. Tenney enjoys photography in his spare time. It seems that the hobby occupies his working time as well. A female employee of his allegedly found a camera hidden under her desk. Also a CPA, Mr. Tenney spend 2 hours in jail, before being freed on $10,000.00 bail.

This case is a good illustration of what it means for a defendant to be charged with numerous counts. Many people often wonder why some crimes warrant multiple counts. Does that make the crime more severe? This is a common misconception which an attorney can easily clarify and defend against.

The severity of a crime is measured in degrees. Though you might hear the terms "felony" and "misdemeanor" on Law and Order, these terms of art are not used in New Jersey. Instead, the terms "indictable" or "non-indictable" are used. For example, a 1st degree case is the most severe and a 4th degree the least with respect to indictable crimes. Non-indictable crimes are typically lesser crimes, and frequently occur in municipal court. Non-indictable crimes are classified as disorderly person offenses.

The phrase "multiple counts" refers to how many times the crime is committed. Each instance an accused person allegedly commits a crime equates to one count, even if it was the same victim and same action repeated. This surveillance case alleges that the victim was recorded on three different occasions. As such, there are three separate counts relating to the different dates on which the Defendant allegedly recorded the victim without her knowledge. A skilled attorney should be hired at the first possible moment, to sort through the requirements of each degree of a charge and whether or not there is proof that they are met, as well as the circumstances that generated the multiple counts.

This blog is to publicize a relatively recent change in New Jersey motor vehicle law that affects us all. This statute is referred to as the "New Jersey Move Over Law" (N.J.S.A. 39:4-92.2). The law reads that the operator of a vehicle approaching a stationary emergency vehicle, e.g., police car, ambulance, etc., that is displaying flashing emergency lights shall approach the emergency vehicle with due caution and shall either (1) make a lane change into a lane not adjacent to the emergency vehicle if possible in the existing safety and traffic conditions; or (2) If a lane change would be impossible, then reduce the speed of the vehicle to a reasonable and proper speed for the existing roadway and traffic conditions, which shall be less than the posted speed limit.
What does that mean in practical terms? If you're driving along the road and you see something like a police car with its lights on at the shoulder of the road, you should move over a lane if you can. If changing lanes is impossible, then you should slow down considerably and pass the police car with extreme caution. The penalty for this ticket is a fine between $100 and $500 and two motor vehicle points. With this degree of potential expense and long term inconvenience of points on your license, you should contact an attorney immediately in order to defend against and potentially lessen these charges or challenge their validity.

A reality star and aspiring model allegedly burglarized those whom she sought to hobnob with, and has been charged with the crime, along with six others. Alexis Neiers, who at age 18 is an adult, pleaded 'no contest' and received six months in jail and three years probation. If she violates probation, she can get as much as two years in state prison. The plea of 'no contest' here was her best option to serve the least amount of jail time. She could have been sentenced to six years in prison if she risked mounting a defending at trial and getting convicted. The defendant here was part of group that was also targeting other celebrities. As such, the burglary of Mr. Bloom's house was not isolated but part of a larger criminal enterprise. Other celebrity targets allegedly include Paris Hilton, Lindsay Lohan and Rachel Bilson. She could face charges for conspiracy on the other houses. She has until the end of June to enjoy her freedom, before heading to jail, for which it is reported that she will testify against the other individuals charged. They are scheduled for a Court appearance at the end of the month. This is an example of the benefits a defendant can avail him or herself of when hiring a skilled defense attorney at the first possible opportunity following an arrest.

Drug tests results carry a lot of weight in a courtroom. They are a requirement of any prosecution of a drug related crime. A scientist at NYPD forensic lab tech has been accused of falsifying drug test results and suspended when a trial was stopped due to concerns about her testimony. Mariem Megalla is reported to have mislabeled samples as positive, and failing to retest negative samples and marking them positive to save herself the work. The media has reported the details of her mishandling, misdeads and omissions. With 180 open felony cases from this year alone, this could rock the criminal justice system for the near future, possibly triggering appeals where possible. The Quality Control staff of the NYPD uncovered her alleged botched tests. This is not the first time that the forensic labs have been accused of sloppiness, laziness or incompetence, the most recent of which was in 2006.

This is a very serious matter because it puts the reliable of the state's evidence at stake. In a case involving drugs, the police cannot claim a substance is, for example, cocaine, without having it tested. Here is a hypothetical example: A car is stopped and police located packs of white powder, which they believe to be cocaine in the backseat of the car. The suspect can be arrested and charged with possession of cocaine; however, the state must prove that substance in cocaine at the time of trial in order to obtain a conviction. In this matter, it appears a lazy lab tech has put the state in a bind. If the substance was not properly tested defense counsel will move to have the evidence suppressed and then State will have no case to prove. This may turn out to only be an isolated incident, but every New York attorney that had a case where Ms. Megalla was the lab tech will surely be seeking that the State verify the results. Of course, a good attorney defending drug charges will examine the veracity of forensic evidence.

The police are still investigating the situation even though they know that George Huguely killed Yeardley Love. However, the police are doing their due diligence to make sure they prove their case. Also, the police are searching for information about the lacrosse player's state of mind. If they can find some evidence of proof that he intended to kill Ms. Yeardley, also a lacrosse player, then he can be charged with first-degree murder. This is a much different ranking than the rest of his team, ranked first in collegiate lacrosse right now. If that evidence cannot be produced then Mr. Huguely can argue that the crime was manslaughter. That means the death was an accident or that he didn't intend to kill her, but only intended to harm her. Practically speaking this could mean the difference of the young man spending life in prison with no chance of parole or merely spending a very long time in prison.

It is beginning to look like there is evidence of his state of mind because it has been reported that he allegedly attacked Ms. Yeardley before, at another university, the University of North Carolina. They had a long term, on-off-again volatile relationship. Our "gentleman" student-athlete has been arrested for threatening to kill a female police officer while drunk, in an altercation where the officer eventually tasered him. He apparently jumped off the family yacht when his father called the police to come out a quarter mile off shore from the family's Florida estate to help with a domestic dispute. Both the defendant and the victim were raised in a life of privilege, complete with prestigious prep schools the likes of which make this story ripe for a made-for-television-movie. In the interim, the trial will unfold that will demonstrate the relevant issues in prosecuting and defending crimes of passion. There are many lesser crimes resulting from domestic type disputes that, if prosecuted, could prevent the violence from escalating. A proper, skilled defense by an experienced attorney can redirect someone a defendant on a destructive path toward a more productive, mentally healthy life and protect those around him or her.

An overzealous wrestling fan has reportedly been charged with four counts of fourth-degree threatening, one count of second-degree harassment and two counts of second-degree threatening for making threatening phone calls to the WWE headquarters. Zavr Peygumbari was apparently upset over the release of one of his favorite wrestlers, former female champ Mickie James, when he called the WWE offices in Stamford, Connecticut to make numerous threats, including reportedly over 20 phone calls. Peygumbari was arrested on Friday and held on $250,000.00 bail before it was reduce in an arraignment and bail hearing on Monday. According to Court documents, New York Police have described the 22 year old man as "emotionally disturbed." He has previous marijuana charges in his file as well. His defense attorney described him as a fervent fan who would not follow through on threats.

This is a classic example of someone being overzealous and now having real legal troubles due to his charges. Peygumbari could be facing prison time with his second-degree charges, but it sounds like he might have been given the ultimate punishment in his release on bail, he was banned from attending an future WWE shows. This is not that uncommon in criminal law that a person would be banned from victim contact pending the outcome in the case; however, in this matter the "victim" just happens to be a large company.

A car is parked on the side of a highway with the internal light on and its occupants in a heated discussion of some sort. A police officer appears at the driver's side to check on the situation and make sure they do not need help. After being assured by both driver and passenger that they are fine and in no need of help, the officer smells what he believes to be alcohol on the driver's breath, and requests that he exit the vehicle for the purposes of a field sobriety test. Is this test respectful of the driver's constitutional rights? Is this test a warranted attempt to protect all the other vehicles on the road?

An experienced lawyer would tell you that according to the New Jersey courts, the oral aroma or odor of alcohol alone is not sufficient to sustain the probable cause necessary for questioning and sobriety testing. The New Jersey Appellate Division, in State v. Hawkins, A-7400-97T5F (1999), held that the smell of alcohol on an individual's breath is insufficient to provide probable cause for the officer's belief that the driver was operating his vehicle under the influence of alcohol in the absence of any untoward driving or other indication of insobriety. In the Hawkins case, the defendant was stopped for a community caretaking reason when the officer heard a scream emit from the vehicle. There was no evidence of unsafe or illegal operation of the car. The only indication to the officer that the defendant had consumed alcohol that evening was the odor on his breath.

The New Jersey Appellate Division again addressed this issue in State v. Jones, 326 N.J.Super. 234, 245-6 (App.Div. 1999), stating that, "The nervousness of the driver, considering the fact of the stop itself, along with his consumption of alcohol, is expected. The mere smell of alcohol and admission of consumption may not, by itself, warrant a sobriety test...However, justification of the search under these facts would have the effect of permitting a search...of every motor vehicle which is stopped for a minor motor vehicle violation, where the driver admits to having consumed one bottle of beer. Such a search goes beyond the bounds permitted and does not pass constitutional muster." In the Jones case, the driver was stopped by the police officer for failing to use a traffic signal when changing lanes on the New Jersey Turnpike. After the vehicle was stopped and the officer was speaking to the driver, the officer noticed an odor of alcohol on the driver's breath.

So not only must the police officer witness actual operation of a vehicle, he must witness a more than minor moving violation just prior to pulling you over, in order to be paired with detection of alcoholic breathe to create sufficient probable cause for a field sobriety test. Failing to signal before a lane change is too minor. What exactly constitutes a sufficiently serious moving violation for a police officer to legally request to administer a field sobriety test to a driver? Must it be obviously erratic and unsafe driving? What is clear is that alcohol on your breath is not enough. And that passes the sniff test. Reasonably, three sips of a beer could make your breath smell like alcohol, and simultaneously, you might have 6 beers in an hour, chew a couple of Altoids and not emit any oral alcoholic odor. What constitutes a serious enough moving traffic violation to make coincidental alcoholic breath sufficient probable cause to request a field sobriety test is a different legal question for a different post. Either question should be considered by a skilled attorney when defending any DUI/DWI charges, and should be contacted as soon as possible following such an incident.

There is a reputation for loud, brutish behavior at Philadelphia sporting events and a Cherry Hill New Jersey man did nothing to refute that notion. Apparently, an off-duty police officer was attending the Phillies game with his daughters, and behind them sat a group of extremely intoxicated college aged men. This rowdy crew was certainly a problem, but their poor behavior hit an apex when one of the young men stuck fingers down his throat to vomit at will upon one of the off-duty police officer's daughters. Finally, some other nearby fans intervened and restrained the offender while security could move in to remove him. The man was charged with aggravated assault.

This is a great illustration how one can be charged with assault when the facts are not one a layperson would understand as assault, due to the intent of the law. Here, the young man was charged with aggravated assault because the vomit landed on the girl. The vomit is considered an extension of the man, and of course he willfully vomited, so the act rises to the level of aggravated assault. Many people commonly think that aggravated assault means assault, or harming another using a weapon (i.e. a baseball bat). However, in New Jersey, it is defined in N.J.S.A. 2C:12-1(b)(1) as "attempts to cause serious bodily injury to another, or causes such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes injury..." Naturally, there are many more subsections, but that is the basic, fundamental standard for aggravated assault. Psychological trauma on the part of the young girl would certainly be conceivable harm in this case. Now this case is in Pennsylvania so the law may be different, but this gives one an idea of what the spirit and intent of the law is in this matter in New Jersey. A highly skilled attorney would be required to defend against charges such as these.

Another sparkling product of the NFL has appeared on the crime blotter. Corey Dillon, retired running back for the New England Patriots, was reportedly charged with DUI, driving under the influence, or DWI, driving while intoxicated.

Sherriff's deputies have stated that officers spotted a man in a red Chevy Camaro driving very slowly behind them in the pre-dawn hours of the morning. The Super Bowl veteran was pulled over and questioned, and allegedly admitted to drinking earlier the prior evening. Bail for the 35 year-old father of three was set at $5,000.00, he was then released after posting, and he is expected to return to Court in June.

Operating a vehicle while under the influence of drugs or alcohol, or DWI, in California is a criminal offense, which is why the $5000.00 bail was set. In New Jersey, DWI is technically a motor vehicle offense but it has with quasi-criminal penalties, including jail fines more than $750.00, license suspension and a record that can negatively impact many other parts of your life.

The recently unlucky football star has been brought to Court for other reasons as well. His wife, Desiree, has reportedly filed for divorce after 10 years of marriage, claiming irreconcilable differences. She has asked for full legal and physical custody of their children, spousal support and legal fees. While she has offered to agree to visitation for Dillon, his pending DWI charge will no doubt have an effect on how liberal that visitation will be, and whether or not the Court will require that he see his children while under supervision. His recent conduct was enough to bring criminal charges of DWI, even if they are not ultimately proven, at the very least give the appearance of questionable behavior, and arguably poor judgment. A judge may not want him driving with his children, for example, until the case is settled.

Given the complexity of the potential consequences of a DUI in New Jersey, it is crucial to have an experienced attorney represent your rights as soon as possible.

Interestingly, Corey Dillon was pulled over for driving unusually slowly. Though most thinkg of erratic driving as speeding or weaving, driving unusually slowly is another form of erratic driving. Driving extremely slowly is usually charged with careless driving, NJSA 39:4-97, which carries a penalty of 2 points as well as a fine, and is certainly a legitimate reason to stop a vehicle in NJ. So do not think you are in the clear if you "take it nice and slow" on your way home from a night out. Or if you do, have your attorney on speed dial.