Frank Luciano Blog | Frank T. Luciano, PC

Quite a number of months ago, New Jersey passed its version of a medical marijuana law. The law was enacted during the lame luck administration of Governor Jon Corzine.

Within recent times, the Christie administration has been pressing the sponsor of the law, Senator Nicholas to delay the implementation of the regulations required by the statute. Christie’s request was grounded on a perceived need to allow for further studies to determine how the marijuana/pot is to be grown and sold. Senator Nicholas has indicated that he is inclined to recommend an extension and that he thought that the Christie administration’s request was made in good faith and not as an effort to stonewall the application of the statute. The director of NORML, however, has threatened to file a lawsuit if the promulgation of the regulations are delayed for any reason.

Labels: Bergen marijuana Medical Marijuana Morris new jersey nj Passaic Pot

7/13/2010
Frank T. Luciano, Esq.
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DRUG ATTORNEY IN BERGEN, PASSAIC AND MORRIS COUNTIES: CRIMINAL IMPLICATIONS OF ILLICIT DRUG USE DURING PREGNANCY

In 1997, the Supreme Court of South Carolina rendered a decision that concluded that women who gave birth to healthy newborn children who tested positive for cocaine could be prosecuted under the state’s child abuse law. Despite current thoughts to the contrary, South Carolina appears to be the only state that has a well-defined legal basis for prosecuting women who use drugs during their pregnancy.

In a recent article published in the National Association of Criminal Defense Lawyer’s monthly magazine, “The Champion,” it was reported that the factual roots for these types of cases are grounded upon “junk science.” Indeed, the article stated that “recent studies showing that cocaine is no more harmful to a fetus than nicotine use, poor nutrient, lack of prenatal care of other conditions commonly associated with the urban poor." It also debunks the popular notation that certain other illicit drugs use can have a deleterious effect on in-utero exposure.

The article noted that the notion that cocaine can have an extremely harmful affect on newborns was significantly influenced by some of the country’s most well respect magazines, news papers, and television stations that disseminated horror stories about crack use in pregnant women in mid 1980's. The author complained that “this hype, was built on pre-existing cultural and racial stereotypes about black motherhood” and that this article was largely unchallenged until 2004, when 30 well received doctors and researchers concluded that the “crack baby” was virtually a myth.

The article also referred to a conclusion of a leading scientists on the affects of prenatal exposure to marijuana where the scientist concluded that there has been few reported cases where marijuana use during pregnancy had a negative effect in child birth, even in high risk pregnancies. Indeed, scientists say that the use of alcohol and cigarettes have a more pronounced effect on a healthy delivered than marijuana.

Labels: Bergen child abuse law cocaine drug use during pregnancy Morris new jersey Passaic

5/24/2010
Frank T. Luciano, Esq.
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DRUG ATTORNEY IN BERGEN AND PASSAIC COUNTIES: OTHER CRIMES EVIDENCE

The rules of evidence in New Jersey generally prohibit the government from admitting into evidence other crimes committed by the defendant except under limited circumstances, and that is so because “other crimes” evidence can tend to influence a jury to conclude that the defendant is a “bad” person. In a recent decision rendered by the Appellate Division a defendant with a prior drug conviction took the witness stand and testified on direct examination that, although he was a former drug dealer, he had not sold drugs since the summer of 2006. Thereafter, the prosecutor began a lengthy cross-examination probing intimate details of various components of the defendant’s drug business prior to June of 2006. Ultimately the defendant was convicted.

The Appellate Division reversed the defendants’s conviction and observed that other crimes evidence is a very sensitive area of the law that should heighten a trial judge’s concern. Continuing, the Court said that the cross-examination in the case before the court had no other relevant purpose than to show a propensity to commit crime. Indeed, the government did not produce any admissible evidence that the defendant conducted drug related transactions after June 2006. The court also observed that the government did not offer any proof as to the basis of the other crimes evidence, nor did the court provide any limited instructions to jury with respect to that evidence.

Labels: Bergen drug dealer drug related transactions Hudson Morris new jersey Other crimes evidence Passaic

4/15/2010
Frank T. Luciano, Esq.
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DRUG ATTORNEY IN BERGEN, PASSAIC AND MORRIS COUNTIES: JURY READ BACKS

There are many occasions when a jury deliberating in a criminal case or will ask for a “read-back” of the testimony of certain witnesses to help resolve a factual contest. Requests of this nature are routinely granted.

Where, however, a jury requests to review a videotape of a witness’s testimony, the issue becomes a bit more complicated. One of the first cases to address the issue concluded that where a jury seeks to watch a playback of videotaped testimony of the government’s witness’s, a trial judge should first offer to read the transcripts of the testimony. The reasoning behind that ruling is that the prosecution witness can be brought before the jury a second time after the defense has rested its case and “all the animation, passion, or sympathy originally conveyed (by the witness) are again presented to the jury”. In short, the Court determined that the procedure was an unfair disadvantage to the defendant.

Recently, an Appellate Division panel concluded that in those courtrooms where only a videotaped record is created, a read-back is virtually impossible without adjourning the trial for an extended term to permit the production of a stenographic record. Resultantly, the court concluded that the judge’s decision to allow the jury to review the videotape of a government’s witness was not prejudicial error because it was well within the sound discretion of the Trial Court.

Labels: Bergen Morris new jersey Passaic Read-backs videotape of witness witness

11/20/2009
Frank T. Luciano, Esq.
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MARIJUANA/POT LAWYER IN BERGEN AND PASSAIC: THE FIRST MARIJUANA/POT CAFE IN THE US

In the state of Oregon, there are approximately 21,000 people registered to use medical marijuana for a whole range of different illnesses. As a result of President Obama’s recent declaration to law enforcement authorities to refrain from prosecuting users and suppliers under a state’s medical marijuana law, there have been a number of recent developments that are rather interesting.

Last week, an adventuresome entrepreneur opened the “Cannabis Café” in Portland Oregon. It is the first U.S. establishment which can allow a certified medical marijuana/pot user to acquire and consume marijuana in a public place. The monthly membership fee is $25.00. Members are served by “budtenders.” Food and non-alcoholic beverages are also available.

The site of the “Cannabis Café” has had a rather exotic history. For a while it was a speakeasy and later became a topless bar called “Rumpspankers.”

Labels: Bergen cannabis marijuana/pot lawyer medical marijuana laws new jersey Passaic

11/6/2009
Frank T. Luciano, Esq.
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CRIMINAL LAW IN BERGEN AND PASSAIC COUNTIES: THE SIXTH AMENDMENT AND VIDEO TAPED DEPOSITION IN A CRIMINAL TRIAL

There is a rule of court in New Jersey that can allow the use of a video taped deposition in a criminal trial, if a material witness is unavailable because of death or physical or mental incapacity. Given the recent rulings by the United States Supreme Court on the Confrontation Clause contained in the Sixth Amendment, the legitimacy of the rule is suspect.

In October 2009, an appellate panel concluded that the use of a video taped deposition violated a defendant’s Sixth Amendment rights even though his attorney had an opportunity to cross-examine the witness at the deposition. In this case, the witness, an employee at a fast food store, told police that the defendant passed a gun to him through a rotating window at the store. When the case’s trial date was adjourned, the government learned that the witness was going to travel to Pakistan. At the government’s request, the defendant’s attorney consented to a video taped deposition, where he was allowed to cross-examine the witness. The video was ultimately put into evidence and the defendant was convicted.

The appellate court reversed the conviction and concluded that the government had not satisfied the clear language of the rule, despite its contention that the witness’s presence in Pakistan was “physical incapacity.” The clear import of this decision is that the rule will be strictly construed because of the problems it poses with the Confrontation Clause.

Labels: Bergen material witness new jersey Passaic Sixth Amendment Video taped depositions

10/16/2009
Frank T. Luciano, Esq.
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DRUNK DRIVING LAW IN BERGEN AND PASSAIC COUNTIES: THE INFLUENCE OF AN UNCOUNSELLED PRIOR CONVICTION ON SENTENCING

New Jersey's Drunk Driving (DWI/DUI) Statute (Statute), authorizes the imposition of harsh penalties for repeat offenders. A second offender can receive a mandatory term of imprisonment of not less than 48 consecutive hours nor more than 90 days. A third offender will be required to serve a mandatory term of imprisonment of 180 days.

Almost twenty years ago, New Jersey Supreme Court held that a prior conviction for drunk driving (DWI/DUI) case could not be used to enhance the penalties of a subsequent drunk driving (DWI/DUI) conviction if the prior conviction occurred without the assistance of a lawyer or an express waiver from the defendant as to his/her right to a lawyer. This remedial rule only applied to the defendant's exposure to a jail term. Thus, if the defendant was a second offender, with a prior uncounselled conviction, the trial court can only impose a first offender jail term. All other penalties, including fines, administrative surcharges and llicense suspensions can be imposed as if the defendant was a second offender.

In order to obtain the benefit of an uncounselled prior conviction, a drunk driving (DWI/DUI) defendant has the burden to establish that he/she was not given appropriate advise as to his/her right to counsel or an assignment of counsel if he/she could not afford one. In order to obtain the benefit of this rule, the application must be made before the municipal court where the prior conviction occurred.

Labels: Bergen drunk driving DWI/DUI new jersey nj Passaic right to counsel Uncounselled prior conviction

7/24/2009
Frank T. Luciano, Esq.
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CRIMINAL LAW IN BERGEN AND PASSAIC COUNTIES: RIGHT TO COUNSEL

CRIMINAL LAW IN BERGEN AND PASSAIC COUNTIES:
RIGHT TO COUNSEL

Approximately 20 years ago, the United States Supreme Court decided the case of Michigan v. Jackson. In that case, the court held that once a defendant invoked his right to counsel at an arraignment or similar proceeding government agents could not interrogate the defendant.

In May, the Court revisited that ruling in a case where an indigent defendant had an attorney assigned to him at an arraignment by the decision of the court and not at the request of the defendant. Subsequent investigative efforts produced an inculpatory statement, as well as, a letter of apology to the victim's widow. The defendant sought to suppress the information grounded upon the Jackson decision. The state court ultimately denied the request concluding that the Jackson opinion was not applicable because the defendant had not affirmatively invoked his right to counsel.

The defendant appealed the case to the United States Supreme Court which upheld the state court's decision. More importantly, however, the court overruled the Jackson case. That part of the decision seemed to be an overkill because the case could have been decided on the narrow issue as to whether the defendant invoked his right to counsel.

Labels: arraignment bergen county Criminal Law inculpatory statement Michigan v. Jackson new jersey Passaic County right to counsel

7/23/2009
Frank T. Luciano, Esq.
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DRUG LAWS IN BERGEN AND PASSAIC COUNTIES:THE MEDICAL MARIJUANA MOVEMENT IN NEW JERSEY

DRUG LAWS IN BERGEN AND PASSAIC COUNTIES:
THE MEDICAL MARIJUANA MOVEMENT IN NEW JERSEY

A Senate Committee in New Jersey recently voted to recommend the enactment of the "Compassionate Use Medical Marijuana Act." The Bill is now available for vote by the full house. Under the terms of the Bill, physicians would be able to prescribe marijuana to patients. The script must be issued by the Patient's treating physician and the marijuana must be purchased from a licensed and regulated non-profit centers. The Bill specifically prohibited an option to allow eligible candidates to grow their own plants. Other conditions contained in the Bill, included: (a) a limitation of 1 oz. of marijuana per month; (b) a long standing relationship between the physician and patient; and (c) identification cards issued to both the physician and patient.

Governor, Jon Corrzine has indicated he will sign the Bill. If successful, New Jersey will become the 14th state in the country authorizing marijuana use for medical purposes.

Labels: bergen county compassionate use marijuana act Drug Laws Drugs marijuana Medical Marijuana new jersey Passaic County

7/16/2009
Frank T. Luciano, Esq.
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CRIMINAL LAW IN BERGEN AND PASSAIC COUNTIES: RESTRICTION ON THE SEARCH INCIDENTAL TO THE ARREST EXCEPTION TO THE FOURTH AMENDMENT

CRIMINAL LAW IN BERGEN AND PASSAIC COUNTIES:
RESTRICTION ON THE SEARCH INCIDENTAL TO THE ARREST EXCEPTION
TO THE FOURTH AMENDMENT

Over twenty-five years ago, the United States Supreme Court decided a case titled New York v. Belton. In that case, the court sought to establish a "bright line rule" to assist police officers involving searches incidental to an arrest. In Belton, the court specifically ruled that the entire passenger compartment of a motor vehicle can be searched once the driver of the vehicle is arrested. Unfortunately, the case did not determine whether this so-called "bright line rule" would apply if the arrestee was handcuffed and removed from the vehicle.

This April, the United States Supreme Court revisited that issue in a case titled Arizona v. Gant. In Gant, the driver was arrested for a suspended license. He was handcuffed and locked in the back of the police car before the vehicle was searched. The search uncovered cocaine. Under those facts, the court concluded that once the arrestee had been handcuffed and removed from the scene, there was no longer any need to search the passenger compartment of the car and thus, the search could not be justified under the search incident to the arrest exception to the Fourth Amendment.

Labels: attorney bergen county Bright Line rule cocaine Criminal Law Fourth Amendment Motor Vehicle searches new jersey Passaic County Search incidental to arrest

7/14/2009
Frank T. Luciano, Esq.
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CRIMINAL LAW IN BERGEN AND PASSAIC COUNTIES: BAIL FOFEITURES AND CLAIM FOR ATTORNEY FEES UNDER AN ASSIGNMENT OF BAIL

CRIMINAL LAW IN BERGEN AND PASSAIC COUNTIES:
BAIL FORFEITURES AND
CLAIM FOR ATTORNEY FEES
UNDER AN ASSIGNMENT OF BAIL

In January 2008, Angel Barada, absconding from a trial where he was charged with sexually abusing a seven year old girl. He was ultimately featured on "America's Most Wanted."

Prior to his arrest, his mother posted a $75,000 cash bail. During the prosecution of the case, the mother assigned approximately $38, 000 of the bail money to the two defense attorneys who were representing Barada. After the trial court issued a fugitive's warrant and forfeited his bail, the two lawyers filed a motion to set aside the forfeiture order to allow them to enforce the assignment. The lawyers argued that since it was the public policy of the state to insure that Barada was represented by attorney, it would be better to have the cost of litigation assumed by the defendant's family rather than by the state through the Public Defender's Office. The trial court rejected the argument and denied the application.

The case was ultimately brought to the Appellate Division, where trial court's decision was affirmed. In its opinion, the appellate panel noted that the trial court did not prevent the two attorneys from returning to court for relief if Barada was ultimately located.

Labels: Absconding America's Most Wanted Assignment of Bail attorney Bail Cash Bail Criminal Defense Attorney Criminal Law Criminal Law in Bergen County Criminal Law in Passaic County Forfeiture of Bail new jersey

7/10/2009
Frank T. Luciano, Esq.
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DRUG LAWS IN BERGEN AND PASSAIC COUNTIES: MIRANDA WARNINGS IN A DRUG RELATED STOP

A week or so ago the New Jersey’s Supreme Court ruled that a passenger in a motor vehicle stop could not suppress information given by a driver about the existence of drugs in an automobile where the driver’s constitutional rights were infringed because the interrogation was unduly long and coercive.

The driver and passenger were stopped by a local law enforcement agent who noticed that the vehicle did not have an inspection sticker. In addition, the driver was not in possession of a license or an insurance card. Thereafter, the driver and passenger were questioned separately. That interrogation produced inconsistent information. The investigating police officer told the driver that he thought that the vehicle contained drugs. The driver then disclosed the location of marijuana and cocaine in the car. Both the passenger and the driver were charged with possession of drugs.

Prior to trial, the passenger filed a motion seeking to suppress the statement made by the driver as to the location of the drugs, contending that the interrogation offended certain constitutional protections including those contained in Miranda v. Arizona. The trial court suppressed the statement and as a result, the use of the drugs seized in the motor vehicle could not be used at trial. The Appellate Division reversed that decision. The Supreme Court affirmed.

Labels: Bergen cocaine Coercive interrogation Drugs marijuana Miranda v. Arizona new jersey nj Passaic suppression of evidence

6/30/2009
Frank T. Luciano, Esq.
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CRIMINAL LAW IN BERGEN AND PASSAIC COUNTIES: MEGAN'S LAW

CRIMINAL LAW IN BERGEN COUNTY AND PASSAIC COUNTIES:
MEGAN'S LAW

Awhile ago, I posted a blog that identified a case decided by the New Jersey Supreme Court that prevented municipalities from implementing residency restrictions on sex offenders. The core of that decision was grounded upon principals of preemption.

Last week, the Assembly Judiciary Committee unanimously approved a bill to effectively overrule the Supreme Court's decision by empowering local authorities to restrict where sex offenders may live in their municipality. The bill will authorize exclusionary zoning around playgrounds, parks, schools and daycare centers. It will not require sex offenders under twenty-one (21) to relocate , however, if an area has been re-zoned. Nor, will the law effectively exclude residency throughout the town.

The legislative action has been hotly disputed by the American Civil Liberties Union and the Public Defender's Office. These objectors have cited recent statistics from Iowa where similar local ordinances have produced a tracking problem for sex offenders because they will not register for fear of being ordered out of an exclusionary zone.

Labels: attorney Criminal Law Criminal Law in Bergen County Criminal Law in Passaic County exclusionary zone Megan's Law new jersey new jersey attorney preemption residency sex offender

6/26/2009
Frank T. Luciano, Esq.
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DRUNK DRIVING (DWI/DUI) IN BERGEN AND PASSAIC COUNTIES: IGNITION INTERLOCKING DEVICE

DRUNK DRIVING (DWI/DUI) LAWS IN BERGEN AND PASSAIC COUNTIES:
IGNITION INTERLOCKING DEVICE

A recent bill has been introduced in New Jersey that would require all persons convicted of drunk driving (DWI/DUI) offenses to install an interlocking device on their motor vehicle ignition system. In order to engage a motor vehicle engine once this device has been installed, the operator will have to provide a breath sample by blowing into a mouth piece attached to the device. If the device detects a blood alcohol concentration (BAC)of 0.04% the engine can not start.

The bill would require first offenders to maintain the device for a period of six (6) month; second offenders for a period of two (2) years, and, third offenders for ten (10) years. The bill does not contain a provision that would require persons convicted of refusing to take a breath test to install the ignition interlocking device. Some detractors contend that the new law will cause more drivers to refuse to take the breath test. Others complain that the seventy-five ($75.00) dollar a month fee for the maintenance of the device will produce an unnecessary financial hardship. The biggest controversy that may result from a law of this type, however, relates to the scientific reliability of the device. Thus far, the courts have not concluded that the device is accurate or reliable. That issue may produce years of litigation.

The bill was called "Ricci's Law" after Ricci Branca a youth who was run down by a drunk driver while riding his bicycle. The intoxicated driver had a BAC of .339. Drunk driving law in bergen county.

Labels: Blood alcohol concentration (BAC) Breath Sample drunk driving drunk driving in Bergen County Drunk Driving in Passaic County DWI/DUI Ignition Interlocking Device Intoxicated driver new jersey Ricci's Law

6/19/2009
Frank T. Luciano, Esq.
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CRIMINAL LAW IN BERGEN AND PASSAIC COUNTIES: MANIPULATING MIRANDA

CRIMINAL LAW IN BERGEN AND PASSAIC COUNTIES:
MANIPULATING MIRANDA

It is not uncommon for law enforcement agencies to interrogate a suspect at different times and in different stages while the suspect is at the police station. Indeed, some law enforcement agencies maintained a protocol that instructed its agents to delay the Miranda Warnings until an incriminating statement has been produced. At that point, the suspect would be Mirandarized and the confession restated.

New Jersey's Supreme Court has concluded that this "question-first, warn-later" type of interrogation is conceived to undermine the holding in Miranda and the suspect's privilege against self-incrimination. In an effort to set "clear standards" that would discourage law enforcement agents from diluting these important principles of law, the court identified a number of factors to be considered to determine whether or not a suspect "knowingly, voluntarily and intelligently waived his rights" where the "question-first, warn-later" questioning occurs. Those factors included : (1) the extent of the questioning; (2) the nature of admissions made before the suspect was informed of his Miranda rights; (3) the time between the pre-and-post-warning questioning; (4) whether the same law enforcement agents were involved; (5) whether there was any pre-warning statement to the effect that information would be used against the suspect; and, (6) whether the post-warning questioning was a continuation of the pre-warning questioning.

Recently, an appellate panel rejected the government's position that this two-step strategy of interrogation was defective where a pre-warning interrogation

produced no incrimination evidence, but the post-warning interrogation did. In that opinion, the court embarked upon a painstaking analysis of the factors recited

above and concluded that the government had not proved beyond a reasonable doubt that the suspect made a knowing, intelligent and voluntary waiver of his

Miranda Warning and his rights when he gave his post-warning statement that was incriminating

Labels: attorney bergen county Criminal Law Manipulating Marijuana Miranda new jersey new jersey attorney Passaic County Privilege against self-incrimination question-first Waiver of Miranda warn-later

6/12/2009
Frank T. Luciano, Esq.
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DRUG LAWS IN BERGEN AND PASSAIC COUNTIES: THE WAR ON DRUGS (Part 1)

DRUG LAWS IN BERGEN AND PASSAIC COUNTIES:
THE WAR ON DRUGS
(Part 1)

In 2007, the Department of Justice disclosed that there were 7 million people in this country that are in prison, on parole or on probation. A great majority of those prisoners have been convicted of drug related offenses. The cost for incarcerating these prisoners is approximately 3 billion dollars a year. We spend more on maintaining people in the dark dangerous dungeons that law enforcement agents call "correction institutions" then we do on education. Moreover, the first 8 months of 2007, over 1 million people were arrested in this country for drug related offenses. Over a half a million of those people were arrested for a marijuana related offenses.

Many say that this impossible situation is the product of the so called "war on drugs" that began in this country in the 1960s. During that time, the country was rife with political and social chaos and as a result many Americans began to move the government to provide better police protection including efforts to stop what appeared to be a proliferation of drug use. In 1968, president Richard Nixon responded with a well integrated anti-crime statute that made drug dealers and drug users some of America's greatest enemies.

Labels: attorney bergen county Criminal Law Drug Laws in Bergen County Drug Laws in Passaic Count Drug related offenses Marijuana related offenses new jersey Passaic County War on Drugs

6/11/2009
Frank T. Luciano, Esq.
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Criminal Law in Bergen and Passaic Counties: Prior Bad Acts Evidence (Part 2)

CRIMINAL LAW IN BERGEN AND PASSAIC COUNTIES:
PRIOR BAD ACTS EVIDENCE
(Part 2)

Recently, I explored the government's ability to use prior bad acts and other crimes evidence in a criminal prosecution. In a recent case, the Appellate Division addressed the use of this type of evidence in a prosecution involving a defendant, who was convicted of, among other things, the aggravated sexual assault of his young daughter. In that case, the court reversed the defendant's conviction because the trial court improperly allowed the use of other crimes evidence.

Specifically, the government sought to explain why the victim succumb to the father's sexual advances by having the victim testify that the father told the victim that her sister does "this all the time" and that she was very "cooperative." The government elicited this statement from the witness on two or three occasions during the trial and on each occasion, the trial judge gave the jury a cautionary instruction, which said in essence that this testimony could not be used to establish that defendant's disposition to commit the crime subject of the prosecution and that it was offered "merely to establish the content of the events" and to "present a more complete picture to the jury."

The Appellate Division reversed the conviction for two reasons. The first was that the court's instruction was too general in its terms. It concluded that a trial court had a responsibility to carefully formulate a precise explanation as to why the evidence was permitted and generally why it is usually prohibited. The second reason was that the sister had provided a prior statement denying that she had any sexual contact with her father and, as a result, the government had failed to establish the other crimes evidence by clear and convincing evidence.

Labels: Aggravated sexual assault attorney bergen county Criminal Law Criminal Law in Bergen County Criminal Law in Passaic County defense lawyer new jersey new jersey attorney Other crimes evidence Passaic County Prior Bad Acts Evidence sexual assault

6/10/2009
Frank T. Luciano, Esq.
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Criminal Law in Bergen County: New Jersey's Pre-Trial Intervention Program (Part 4)

CRIMINAL LAW IN BERGEN AND PASSAIC COUNTIES:
PRE-TRIAL INTERVENTION (PTI) PROGRAM
(PART 4)

Approximately 13 years ago, a defendant in a criminal case obtained admission into the PTI program over the objection of the prosecutor. The principle cause of the government's veto was that the defendant was charged with a second degree offense. The prosecutor ultimately appealed the decision to New Jersey's Supreme Court. At the time that the Supreme Court heard oral arguments on the issue, the defendant had completed the PTI program and as result, the defendant moved to dismiss the appeal on double jeopardy grounds. Although the Supreme Court denied the defendant's double jeopardy claim, it referred the issue to the criminal practice committee and recommended certain rule changes.

Those changes were accepted by the committee and as a result, a defendant's admission into a PTI program over the prosecutor's objection is now stayed for 15 days in order to give the prosecutor an opportunity to appeal the decision.

In a recent decision, the Appellate Division has taken a rather hardline on the 15 day appeal opportunity limit provided to the government when it dismissed an appeal because the government failed to file its appeal timely.

Labels: bergen county criminal appeals Criminal Defendant Criminal Law Criminal Law in Bergen County Criminal Law in New Jersey defense lawyer new jersey PTI Program

6/9/2009
Frank T. Luciano, Esq.
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Criminal Law In Bergen and Passaic Counties: The Right to a Speedy Trial (Part 1)

The right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution. It is so fundamental in its concepts that it is applicable to the States. The protections afforded by this component of the Sixth Amendment are triggered upon either arrest or indictment.

The following factors must be balanced in analyzing a defendants speedy trial claim: (1) the length of delay; (2) the reason for the delay; (3) the defendant’s assertion of his right; and, (4) the prejudice to the defendant. It is critical to know that none of these factors is regarded as “either necessary or sufficient condition” to the finding that a defendant’s right to a speedy trial has been violated.

Labels: Criminal Law Bergen and Passaic Counties new jersey nj reason for delay Sixth Amendment speedy trial

6/8/2009
Frank T. Luciano, Esq.
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Criminal Law in Bergen County: Pre-Trial Intervention Program Where the Defendant is Accused of a Second Degree Offense

CRIMINAL LAW IN BERGEN:
PRE-TRIAL INTERVENTION PROGRAM
WHERE THE DEFENDANT IS ACCUSED OF
A SECOND DEGREE OFFENSE
(Part 3)

In assessing an applicant's request to participate in a Pre-Trial Intervention (PTI) Program, the prosecutor may consider the nature of the charge made against the applicant. While the prosecutor can not deny admission solely on the basis of the crime asserted against the applicant, there are circumstances, however, when a denial of a PTI application can be based solely on the nature of the crime.

In this regard, it has been said that there is a presumption against admission into the PTI program if the accused is charged with a second degree offense. This presumption against admission into PTI is also applicable to: (1) third degree school zone cases; (2) organized criminal activity; (3) continuing criminal enterprise; (4) crimes of violence or threats of violence; (5) and a breach of the public trust. The rule is not absolute, however. The presumption can be overcome with "compelling reasons" that establish "truly extraordinary and unanticipated circumstances."

Labels: new jersey Pre-Trial Intervention Program Presumption against Admission into PTI PTI Program Second Degree Crime

6/2/2009
Frank T. Luciano, Esq.
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Criminal Law in Bergen County: Juvenile Defendants Therapeutic Screening of Juvenile Defendants and the Problem of Self-Incrimination

CRIMINAL IN BERGEN COUNTY: JUVENILE DEFENDANTS

THERAPEUTIC SCREENING OF JUVENILE DEFENDANTS

AND THE PROBLEM OF SELF-INCRIMINATION

A study conducted by Columbia University in 2004 concluded that 78% of children in the criminal justice system are under the influence of alcohol and drugs while committing their crimes.

In the last few years New Jersey has implemented a number of mental health and substance abuse programs in the preliminary stages of a prosecution involving juveniles to determine if any special conditions have influenced the juvenile’s conduct. Needless to say, these evaluations require the juvenile to disclose rather sensitive personal information, including information which sometimes leads to new or more serious charges.

Last year, New Jersey’s Legislature passed a law that required reports and records relating to mental health and drug abuse services given to juveniles to be kept confidential prior to an adjudication of delinquency. After a finding of guilt has been entered, the trial judge may receive this protected information to assist in framing an appropriate disposition.

This statute was called Eddie’s Law. It was named after Eddie Sinclair, who committed suicide in a juvenile detention center after violating probation over a stolen bicycle.

Labels: bergen county Criminal Law Criminal Law in Bergen County Criminal Law in New Jersey Eddie Law Juvenile Defendants Juvenile Substance Abuse new jersey new jersey attorney Self Incrimination

5/29/2009
Frank T. Luciano, Esq.
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Criminal Law in Bergen County: The Exclusionary Rule and The Impeachment Exception

CRIMINAL LAW IN BERGEN COUNTY:

THE EXCLUSIONARY RULE AND THE IMPEACHMENT EXCEPTION

(2 of 2)

Earlier this week, I wrote about the impeachment exception to the Exclusionary Rule. This exception will allow the government to impugn the credibility of a defendant with evidence previously suppressed. Like the Exclusionary Rule, the impeachment exception is not absolute in it terms.

Specifically, if the suppressed statement is not trustworthy because it was not given freely or voluntarily, the exception will not apply. Some of the factors to be used by the court to test the trustworthiness of the statement is the defendant's age, health, intelligence, the length and nature of the interrogation, the use of physical force or threats of force, the defendant's mental fatigue and advise given as to defendant's constitutional rights, i.e. Miranda Warning.

Before the exception can be used at trial, the government must inform the defendant of its intention to use the suppressed evidence to impeach. At that point, the trial court will be required to conduct a plenary hearing to determine the voluntariness of the statement.

Labels: attorney bergen county Criminal Law Criminal Law in New Jersey Miranda Warning new jersey nj Passaic County right to remain silent Search and Seizure Suppressed Statement

5/27/2009
Frank T. Luciano, Esq.
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Criminal Law in Bergen County: Megan's Law can Preempt Local Ordinances

CRIMINAL LAW IN BERGEN COUNTY: MEGAN'S
LAW CAN PREEMPT LOCAL ORDINANCE

New Jersey's Megan Law was conceived to among other things, track the location of certain sex offenders.
For quite sometime now, various municipalities have enacted ordinances which have imposed greater restrictions on convicted sex offenders by impairing their ability to live within certain distances from parks, playgrounds, school and child care facilities.
A few weeks ago, a appellate court concluded that these ordinances were invalid because Megan's Law had pre-empted this area of the law.

Labels: attorney bergen county Criminal Law Megan's Law new jersey Passaic County preemption sex offender usual

5/15/2009
Frank T. Luciano, Esq.
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CRIMINAL LAW IN NEW JERSEY: THE MRI AND CRIMINAL JUSTICE SYSTEM

For years, the magnetic resonance imaging machine has been used to identify various conditions in the human body to assist in medical treatment. The newer species of this machine called the factional
magnetic resonance imaging (FMSI) was conceived to measure the location and intensity of oxygen enhanced blood flow in the brain. Apparently when brain neurons are activated they require more oxygen to do there work. Resultantly, a scientist can detect, with a decent level of certain, the area of the brain that is working hardest when the subject is asked to discharge certain tasks. Thus, if the subject is shown something that makes him angry or appears to be angry the FMSI machine will be able to determine whether or not emotional response is a spontaneous or merely feigned.

This new technology is prompting some scientist to project the FMSI as the new lie detector. Moreover, the sciences associated with the FMRI is much more sophisticated and better received then the science associated with the polygraph which has been rejected historically by courts across the country.

5/14/2009
Frank T. Luciano, Esq.
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Criminal Law in New Jersey: The Right to a Speedy Trial

The right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution. It is so fundamental in its concepts that it is applicable to the States. The protections afforded by this component of the Sixth Amendment are triggered upon either arrest or indictment.

The following factors must be balanced in analyzing a defendants speedy trial claim: (1) The length of delay; (2) The reason for the delay; (3) the defendant’s assertion of his right; and (4) The prejudice to the defendant.

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