New Jersey Criminal Lawyer Blog

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.

Part II Exceptions to the Warrant Requirement:
A basic principle of Fourth Amendment law is that "searches and seizure inside a home without a warrant are presumptively unreasonable." Payton v. New York, 445 U.S. 573, 5861980). The State bears the burden of proving that a warrantless search falls within one of the few, narrowly circumscribed exceptions to the warrant requirement. State v. Patino, 83 N.J. 1, 7 (1980). Of course, if police have entered your home without permission without a warrant resulting in criminal charges, you should contact an attorney immediately.

One such exception is the "protective sweep." In Maryland v. Buie, 494 U.S. 325 (1990), the Unites States Supreme Court determined the circumstances under which the police may perform a warrantless protective sweep of a defendant's premises incident to an arrest in order to ascertain the presence of any dangerous third parties. The Court held that the Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene. Id. at 327, 334, 337. Such a protective sweep is not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found. Id. at 335. The sweep is to last no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises. Id. at 336. Thus an officer's search for contraband or other evidence incident to an arrest does not constitute a protective sweep, and therefore cannot be based upon merely a reasonable suspicion.

New Jersey also has addressed protective sweeps. In State v. Henry, 133 N.J. 104, 118 (1993), the Court held that upon arresting an individual, "[t]he police may also 'fan out' and conduct a protective sweep of the area if they have reason to believe that they may be in danger from other parties on the premises." In State v. Doyle, 42 N.J. 334 (1964), the New Jersey Supreme Court found that the key to the propriety of a search is when the defendant was arrested. Police may not search in order to arrest, and a search to uncover evidence upon which to arrest is not made lawful because the desired evidence is obtained. Id. at 342. Absent a valid search warrant, the police must actually perform a valid arrest at same time that they performed the search that police justify as incident to an arrest. Id. at 342-43.

It is important to note that the scope of the sweep is a crucial factor. In Chimel v. California, 395 U.S. 752 (1969), the Court held that in the absence of a search warrant, the justifiable search incident to an in-home arrest could not extend beyond the arrestee's person and the area from within which he might have obtained a weapon. A search of a person or things within his immediate control or of the place of arrest to the extent that it is within his immediate possession or control is considered incidental to the arrest. Doyle, supra, 42 N.J. at 344. If police fish around beyond the area where a person might be able to reach, for example, evidence they find is not permissible in Court. Police then arguably must be able to convince the court that the evidence of danger was in reach. The experience of a police search and seizure at the home can be overwhelming, which is why these facts are best examined by a skilled attorney in order to determine the best defense strategy.

Plaxico Burress was indicted by a Manhattan grand jury on two counts of criminal possession and one count of reckless endangerment.

The two counts of criminal possesion of a weapon in the second degree, a Class C violent felony, each carry a minimum of 3-1/2 years in state prison and a maxiumum of 15 years. The sentences would be imposed concurrently.

New Jersey Criminal Lawyer Blog's Take: An update to a prior entry, Plaxico Burress's appearance before the grand jury did not work and he was indicted. As stated in previous entry, it was a long shot at best for this defense to work and now Burress will face trial. Furthermore, Burress is now bound by his grand jury testimony and cannot stray from it or else he faces additional perjury charges.

The best Plaxico can do now is hope to get a beneficial plea. It appears no matter what happens whether by plea or a conviction at trial, the former Giants player will be spending time in the state prison.

Plaxico Burress indicted - Newsday 8/3/09

Former New York Giant Plaxico Burress could potentially testify in front of a grand jury in his pending New York gun possession case. Burress's attorney, Benjamin Brafman, suggested to ESPN reporters that Burress may testify in front of a grand jury. This would be a dramatic step in trying to defend the case against Burress.

Burress faces charges for possession of an unlicensed firearm inside a New York City nightclub. The gun discharged while on Burress's person and left the Super Bowl XLII hero with a self-inflicted gun shot wound in his leg. Burress was subsequently suspended by the New York Giants and ultimately released this offseason. No other N.F.L. team has signed him to date.

New Jersey Criminal Lawyer Blog's Take: This would be quite a rare occurance and might just be a "hail mary" attempt to save Burress from serving prison time. If a suspect goes in front of the grand jury, he will be cross-examined by prosecutors without the benefit of a defense attorney present. Although the proceedings are closed to the public, a transcript of Burress's testimony could be used against him if the grand jury chose to indict him. It is difficult to see how a grand jury could not indict Burress, since based on news reports it appears that Burress will have to admit he brought the gun into the nightclub and the gun discharged into his leg. This will be a tough hill to climb, but shows how much the former Giant wants to avoid any jail-time.

D.A. want Plaxico in jail by trial or plea