New Jersey Criminal Lawyer Blog

Charges of a drug-fueled rape of a potential client do not do much to help the legal profession. Mr. Al Garcia's rape trial began with his accuser's testimony that when she appeared for a consultation for his legal services one evening, she was instead offered cocaine, raped and forced to perform sexual acts. While three others have come forward to testify that Mr. Garcia attempted to trade legal services for sex, the defense has offered evidence that shows no signs of force or injury in the medical report taken after the alleged attack.

While this story leaps of the page due to the "shock value" the case may still be a difficult for prosecutor's to prove based on the facts that have been publicized. This case ultimately comes down to the credibility of both the victim and the attorney. This is because the attorney's defense is not a denial that sexual acts occurred, but rather that the sexual acts were consensual. The fact that Judge is allowing three witnesses to testify appears to undermine the defense. Witness testimony like this can backfire, though, because the defense may argue that the victim in this case was accepting the attorney's offer. However, the fact that the attorney was allegedly using narcotics really damages the attorney's image for the jury. The jury is going to have to weigh the evidence, and the drug use may be a factor is convincing a jury that the attorney did sexually assault the victim and that there was no consent. An experienced attorney can determine the strongest defense against these types of charges, with extremely sensitive and nebulous circumstances, based upon the specific facts of each individual case.

In addition to the State trial, Garcia has been convicted in Federal Court as well for distribution of cocaine and methamphetamine, though the State jury will not know this, at least until the trial is over. Regardless of the outcome of the state trial, Garcia faces attorney discipline including potential disbarment. His law license has already been suspended, and he will probably be looking for a new line of work. The only question is whether he'll have a stopover in the state prison.

Part I
The "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." United States v. United States Dist. Court, 407 U.S. 297, 3131972). Accordingly, it is well established that "searches and seizures inside a home without a warrant are presumptively unreasonable," Payton v. New York, 445 U.S. 573, 586 (1980), and so "prohibited by the Fourth Amendment, absent probable cause and exigent circumstances." Welsh v. Wisconsin, 466 U.S. 740, 749 (1984). This is a constitutional right that should be protected by your attorney in any criminal defense case.

As noted in Welsh: Before agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries. When the government's interest is only to arrest for a minor offense, that presumption of unreasonableness is difficult to rebut, and the government usually should be allowed to make such arrests only with a warrant issued upon probable cause by a neutral and detached magistrate. 466 U.S. at 750.

In other words, the Court assumes that entry without a warrant is barred, and the burden is on the state to prove that the police had an urgency reason that prevented the ability to first obtain a warrant. If they cannot, any type of evidence obtained as a result of that entry will not be permitted to be relied upon at trial (fruit of the poisonous tree).

For example, in State v. Holland, 328 N.J.Super. 1 (App. Div. 2000), the officers conducted a warrantless search of a residence based upon the smell of burning marijuana emanating from the home. The average person would assume that the police could use that scent to generate probable cause. Probable cause should justify a warrant, not warrantless entry or entry without consent. If the suspect voluntarily permitted the police in, or if the suspect voluntarily left the home, that is a different legal situation. In this instance, relying upon several rulings of the United States Supreme Court which stress the sanctity of a person's home, the Holland Court found that there was probable cause to believe someone possessed marijuana, which is a disorderly persons offense, but the minor offense did not generate the exigent circumstances which would justify a warrantless search or arrest in the suspect's home. 328 N.J.Super. at 7. In that type of situation, anything the police found or were told when they entered the home without consent that would incriminate a suspect is barred.

A defendant who pleaded guilty to assault, and charged with drunken driving, drug possession among other things, fled his home state recently. But according to a report, he virtually turned himself in using Facebook. He was living in a nearby state since the fall, and has been wanted by police for failure to appear at his sentencing. Perhaps he didn't realize that police use the Internet too. The tech-savvy police posted a thank-you note too, for the defendant's diligent status posts, which led them to his whereabouts.

Chris Terry was charged with a DUI, a class A felony dealing cocaine, a class C felony drug possession, resisting arrest, possession of a handgun without a permit and driving with a suspended license, in Clarksville, Indiana. Another man and woman were also in the car, in the man's pocket was $1,200.00 and near him was a large amount of cocaine. They were arrested for similar charges, including public intoxication. The arrest was made at a traffic stop early Wednesday morning when a police officer witnessed him driving erratically. Under Terry's his seat was a loaded handgun and in the cup holder next to him was some cocaine. Add to these elements that Terry is 6'5" and 295 pounds and that he allegedly refused to follow police instruction, this could certainly present a very dangerous set of circumstances. Terry is currently being held without bond.

Charges of DUI, drug possession, dealing, possession of a loaded weapon without a permit, resisting arrest and public intoxication carry serious penalties in every state, including New Jersey. This is quite a fall from Terry's football days. He attended the University of Georgia, and played for the Carolina Panthers, the Seattle Seahawks, and most recently, the Kansas City Chiefs in 2006 and 2007. It was reported that the Chiefs cut him for being absent from team meetings in 2007. The NFL suspended him from the 2008 season for substance abuse, after already having been suspended in 2003 drugs and a domestic dispute. Domestic violence and drugs are a common pair, and they should be taken very seriously.

In New Jersey, cocaine is considered a "Controlled Dangerous Substance," or CDS. As one example, this felony possession charge could lead to up to 5 years in jail and remain on your record permanently. If it is your first offense, you could be eligible for the Pretrial Intervention program, which can lead to a dismissal of charges after 1 year. One way to defend against charges of this nature is to question the method of the police search and seizure, or how the cocaine was discovered. The specific facts of the arrest are crucial in determining the best legal course of action.

If you have been involved in domestic violence, or charged with DUI, drug possession charges, weapons charges, or any of these crimes, it is crucial that you call an attorney immediately. Experienced attorneys can be reached at Chamlin, Rosen, Uliano and Witherington.

Marijuana Laws Could Change in New Jersey

On Monday, the chronically or terminally ill in New Jersey came a step closer to finding relief in cannabis, legally anyway, with medical marijuana. Outgoing Governor Corzine stated that he would sign the bill approved by the legislature before he left office. Soon-to-be Governor Christie has given his support to the bill publicly, though he had a concern for loopholes that may be exploited for the purposes of drug abuse. The federal government, according to what Attorney General Eric Holder has been reported as stating, would not prosecute those who are abiding by medical marijuana laws of the state.

The requirements for New Jersey's version of the medical marijuana law is strict, including that patients have chronic pain, wasting syndrome, or 12 months or less to live if a physician determines that the illness is terminal. In addition, only specific illnesses or debilitating medical conditions qualify, including AIDS, multiple sclerosis and certain kinds of cancer. Patients with the selected diseases would be given an identification card permitting them to obtain 2 ounces of marijuana each month from dispensaries sanctioned by the state.

Marijuana legalization on the whole is no closer to reality, however. The current marijuana laws, presumably, would remain in place. While the lowest marijuana law is a disorderly persons offense, possession of less than 50 grams or merely being under the influence of marijuana is punishable by up to 6 months jail time and a $1,000.00 fine. If you are found to have more than 50 grams, that increases to 18 months and a $25,000.00 fine. Possession of paraphernalia alone can get you 6 months and $1,000.00. Distribution of less than one ounce can put you in jail for 18 months as well, and paying a $10,000.00 fine, while more than one ounce increases the jail time to 3 to 5 years and a $25,000.00 fine. If distribution within 1000 feet of a school bus or school property, or near public housing, public park or public building, or sale to a minor or pregnant woman is proven, these factors will significantly increase penalties and make some incarceration and fines mandatory.

Make no mistake: For the foreseeable future, marijuana is far from being legalized, outside of a narrow medical purpose. Be sure to know your rights.

If you have been arrested for any drug related offense, or have questions regarding this area of the law, call Chamlin, Rosen, Uliano & Witherington for a consultation right away.

Tiger is lucky. Another professional athlete's domestic dispute has led to another motor vehicle accident, but the result is far more tragic than loss of sponsorships. Cincinnati Bengals wide receiver Chris Henry died today from injuries sustained by falling from a pick up truck, allegedly driven by his fiancée and mother of two of his children. Police will not say whether he fell out or was forced out of the vehicle, but homicide detectives have been assigned to the case and fiancée Loleini Tonga was driving the vehicle.

At age 26, Henry had a history of arrests, including gun, marijuana possession, and assault charges. The Bengals gave him a break after a rough career at West Virginia under then Coach Rich Rodriguez. At his worst, he was called "an embarrassment to himself and the program," and "a one-man crime wave." He had been suspended by the NFL three times, released and then resigned for another chance to "regroup, catch himself, and re-start his life." Recently, despite being plagued by injuries including a dislocated forearm, he was turning things around. Those around him were both proud and hopeful, saying that "When you see him up close, you'll find that you'll like him," that he "has done everything he can to make himself a better person" and is "a great kid with a great heart."

One doesn't have to dig deep to find a cautionary tale for college athletes, for those embroiled in domestic disputes (Steve McNair's death is also tied to trouble with a mistress girlfriend), for those involved with drugs on any level, and even for dangerous driving (how often do people get behind the wheel when they are upset or following a heated argument).

The legal penalties for all of this behavior quickly pile up, and can have a seriously negative impact on your life, whether you are an athlete or not. Costly fines, loss of drivers license, jail time and mandated community service and treatment programs are all possibilities, depending upon you are caught on a first, second or third offense, or the particular circumstances surrounding the incident. It is too bad that successful athletes who make the most of the opportunities that come their way, and who manage to make good choices do not make the headlines.