Frank Luciano Blog | Frank T. Luciano, PC

If you distribute marijuana/pot or possess the substance with intent to distribute within 500 ft. of a public housing project you will be subjected to enhance penalties under New Jersey drug laws.

A public housing facility is one that is owned by local government under specific legislation known as the “Local Redevelopment Housing Law”. For purposes of computing the 500 ft. distance required by the statute the prosecution can use the outer boundaries of the real property where the facility is located.

In order to make its case under this section of the drug laws, the government does not have to produce any deeds or other title document. The testimony of the investigating officer and the executive director of the property that property was a “public housing facility” and that the drug transaction was within 500 ft. of that property is sufficient.

Labels: bergen county marijuana Passaic County possession with intent to distribute Pot public housing facility

3/3/2010
Frank T. Luciano, Esq.
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MARIJUANA/POT ATTORNEY IN BERGEN AND PASSAIC COUNTIES: DRUG PARAPHERNALIA AND THE ELEMENT OF INTENT (PART II)

As previously explained it is a criminal offense to possess, distribute or possess with intent to distribute drug paraphernalia with the intent that the item will be used to consume or cultivate a controlled dangerous substance.

At times, a retailer of items that can be used as drug paraphernalia, as well as for other legitimate uses, will be prosecuted under the statute. Under those circumstances the intent of the shopkeeper may prove to be a critical issue. New Jersey’s Supreme Court has concluded that the government must establish that the wrongdoer was “practically certain” that the item will be put to an illicit use. The Court also observed notice that although a retailer need not conduct an investigation to identify the intentions of a buyer, the circumstances of each transaction and the merchant’s marketing scheme should be considered.

Labels: bergen county drug paraphernalia Marijuana/pot Passaic County possession of drug paraphernalia possession with intent to distribute

3/2/2010
Frank T. Luciano, Esq.
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MARIJUANA/POT ATTORNEY IN BERGEN AND PASSAIC COUNTIES: DRUG PARAPHERNALIA AND THE ELEMENT OF INTENT

It is against the laws of the State of New Jersey to possess, distribute or possess with intent to distribute drug paraphernalia. The term drug paraphernalia is broadly defined to include just about anything someone can use to ingest a Controlled Dangerous Substance (CDS) into the body or to cultivate a CDS.

There are times, however, when an item is not clearly drug paraphernalia. In those cases, the statute that controls the offense defines some factual consideration that can be used by a judge or jury to reach a just conclusion, including: (a) statements made by the owner; (b) the proximity of the item to a CDS; (c) CDS residue on or in the item; (d) the type and number of legitimate use that can be put to the item; and (e) expert testimony.

Labels: bergen county CDS Controlled dangerous substance Marijuana/pot paraphernalia Passaic County probable cause

3/1/2010
Frank T. Luciano, Esq.
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MARIJUANA/POT ATTORNEY IN BERGEN AND PASSAIC COUNTIES: THE CHAIN OF EVIDENCE CONCEPT

In order to allow tangible items to be admitted into evidence the trial court must be satisfied that the item is substantially in the same condition as the date it was seized. Generally, in drug cases the government will be required to produce every individual who handled or controlled the item. This practical principle of law is called the “chain of evidence”.

Despite thoughts to the contrary, the government does not have to establish every link in the chain of evidence to justify admissibility. It is sufficient if the government can show that there is a “reasonable probability” that the item has not been changed in any material way. Stated differently a flaw in the chain of evidence goes to the evidential weight the jury can impute to the evidence and not its admissibility.

Labels: admissibility bergen county chain of evidence drug cases Marijuana/pot Passaic County probable cause

2/22/2010
Frank T. Luciano, Esq.
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MARIJUANA/POT ATTORNEY IN BERGEN AND PASSAIC COUNTIES: STREET ENCOUNTERS

Many marijuana and other drug related offenses begin with a seemingly innocent street encounter between a defendant and law enforcement agents.

In this regard, it has been said that mere inquiries made by a police officer to a suspect who is already stopped, either on foot or in a vehicle does not require any constitutional justification (i.e. probable cause for an arrest or articulable suspicion for brief investigatory questioning) provided that the encounter is non-intrusive and fleeting in its terms. In order for an encounter to be non-intrusive, the questioning must be in a conversational matter, without any demands, orders or harassment. If there is any indication of criminal suspicion associated with the encounter articulable suspicion will be required.

Labels: articulable suspicion bergen county Marijuana/pot Passaic County probable cause Street encounters suspicion

2/16/2010
Frank T. Luciano, Esq.
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MARIJUANA/POT ATTORNEY IN BERGEN AND PASSIAC COUNTIES: SELECTIVE PROSECUTION DEFENSE IN MARIJUANA CASES

Recently, an Appellate Division Panel addressed a juvenile's argument that his prosecution for possession of marijuana in a motor vehicle occupied by four other juveniles was defective because it violated the Due Process’s Clause against selective enforcement.

The case began when a vehicle was stopped by a local law enforcement agent for disregarding a stop sign. In the initial encounter, the police officer observed an odor of burnt marijuana in the vehicle’s compartment and observed that the driver and two passengers appeared nervous with blood shot and watery eyes. The resulting search produced a burnt marijuana cigarette and a package of marijuana. The police officer only charged the defendant, the driver and one other passenger. The remaining passengers where not charged.

In rejecting the juvenile’s argument that the government was selectively prosecuting him, the court observed that prosecutors have very broad discretion in the charging function and that some selectivity in the prosecution of criminal cases is not constitutionally prohibited unless the decision is based on race, religion or some other arbitrary classifications. The court also observed that in order to prove a claim of selective enforcement “clear evidence” had to be produced to show that the prosecutor was selective in the matter in which the case was prosecuted.

Labels: bergen county burnt marijuana Marijuana/pot Passaic County selective enforcement

1/22/2010
Frank T. Luciano, Esq.
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MARIJUANA/POT LAWYER IN BERGEN AND PASSAIC COUNTIES: INCREASE IN MARIJUANA/POT USE

The National Survey of Drug Use and Health conducted a survey in 2008 and determined that 20.1 million Americans or 18% of the total population used illegal substances in the month subject of the survey. Not surprisingly, marijuana/pot was the drug of choice for at least 15.2 million Americans in that month. In essence, 1 in 15 people in the country used marijuana in the month subject of that survey.

The survey also indicates that the use marijuana/pot has increased by 5/8% from the 2007 series. That survey indicates that meth use is down by at least half over the last three year period.

Labels: bergen county illegal substances Marijuana/pot National Survey of Drug Use and Health Passaic County

1/20/2010
Frank T. Luciano, Esq.
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DRUNK DRIVING (DWI/DUI) LAWYER IN BERGEN AND PASSAIC COUNTIES: A PRIOR REFUSAL CONVICTION CAN INCREASE PENALTIES FOR A SUBSEQUENT DWI/DUI CONVICTION

Approximately 17 years ago, an Appellate Division panel determined that a prior conviction for refusaling to participate in a breath test can not be used to enhance a penalty for a subsequent drunk driving (DWI/DUI) conviction. The core of that decision was grounded upon two considerations. One was the court’s opinion that the refusal statute was “civil in character,” because the proof necessary to establish a conviction was by a preponderance of the evidence. The other related to that portion of the Drunk Driving Statute that allows for enhancement penalties only where there were “subsequent offenses under this section” and, since the refusal offense was not under the section that prohibited DWI/DUI the court concluded that a refusal offense could not increase the penalty for a subsequent DWI/DUI conviction.

However, a recent appellate division decision has concluded that a prior refusal conviction can be used to increase penalties for subsequent drunk driving (DWI/DUI ) convictions because, in 2005, the New Jersey Supreme Court held that the standard of proof for a refusal case was beyond a reasonable doubt, despite the preponderance of the evidence standard required by the statute. Moreover, this new Appellate Division case observed that the “subsequent offenses under this section” language should not be unduly emphasized . Indeed, the appellate panel concluded that any other interpretation would be absurd, given the statutory scheme associated with drunk driving DWI/DUI.”

Labels: bergen county drunk driving (DWI/DUI) enhanced penalty Passaic County prior refusal conviction subsequent offenses

1/13/2010
Frank T. Luciano, Esq.
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DRUNK DRIVING (DWI/DUI) LAWYER IN BERGEN AND PASSIAC COUNTIES: DESTRUCTION OF EXCULPATORY EVIDENCE

Today, many police patrol vehicles are equipped with video cameras to capture events that occur as a result of a police stop or encounter. These video cameras are especially important in the prosecution of drunk driving (DWI) cases.

In a recent case, an appellate court rejected a defendant’s argument that the government’s destruction of the video tape of the arrest violated the defendant’s due process right which prohibits the government from destroying exculpatory evidence. The case had some unusual twists. Apparently, the defendant pled guilty to a Drunk Driving (DWI/DUI) offense, while the New Jersey Supreme Court was analyzing the reliability of the Alcotest in State v. Chun. After the court’s decision in the Chun, the defendant engaged another attorney and sought to vacate the plea arguing in essence that defendant had not been provided the video tape of the arrest and, that since the video tape had been destroyed, the case should be dismissed. The application to vacate the plea was filed almost over twenty months after the date the plea was originally entered.

In rendering its decision, the court concluded that the defendant had failed to establish that the video tape had any exculpatory value because defendant’s guilt was overwhelming. The basis of the court’s decision hinged on the fact that the defendant previously pled guilty to DWI and gave a factual basis to justify the plea. In addition, the Alcotest established her intoxication as a matter of law. Finally, the court observed that there was no indication of bad faith or official contrivance because the video tape had been deleted in the ordinary course of the government’s business.

Labels: Alcotest bergen county Chun drunk driving DWI/DUI exculpatory evidence Passaic County

1/12/2010
Frank T. Luciano, Esq.
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DRUNK DRIVING (DWI/DUI) LAWYER IN BERGEN AND PASSAIC COUNTIES: A DEFENDANT'S SPEEDY TRIAL RIGHT WORKS!

A recent decision from New Jersey’s Appellate Division determined that a drunk driving (DWI/DUI) conviction must be reversed because the delay in prosecuting the case violated defendant’s right to a speedy trial.

The defendant was involved in a one car accident on May 18, 2007. As a result of a subsequent breath test, the defendant was later charged with drunk driving (DWI/DUI). The defendant’s first appearance was on July 17, 2007. At that time, the case was adjourned at the request of the prosecutor and relisted for April 14, 2007. On the second date, the state indicated that it had not given the defendant full discovery and, as a result the case was adjourned again. Other trial dates were listed for September 14, 2007, October 9, 2007, and November 13, 2007. All of those days were adjourned at the request of the government. Ultimately, defendant’s attorney requested the court to list the case on a “try or dismiss” basis. The municipal judge denied the request and rescheduled the case for December 4, 2007. That date was adjourned because the arresting police officer’s unavailability and was relisted for December 18, 2007. Although some testimony was obtained on that day, the case was again adjourned to March 5, 2008. On that day, the state was not prepared to continue. The defendant was convicted on April 16, 2008, almost one year from the date of his arrest.

In analyzing the issues of the case, the court concluded that the delay violated defendant’s speedy trial right and noted that New Jersey’s Supreme Court has implemented a policy that requires a quick disposition of DWI cases within 60 days.

Labels: bergen county breath test drunk driving DWI/DUI Passaic County speedy trial

12/17/2009
Frank T. Luciano, Esq.
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MARIJUANA/POT LAWYER BERGEN AND PASSAIC COUNTIES: LAME DUCK MEDICAL MARIJUANA LAW?

It is expected that New Jersey’s newly elected governor, Chris Christie will not endorse the legislators’ efforts to pass a medical marijuana law. Resultantly, a proponent of the “Compassionate Medical Marijuana Act” disclosed that a movement is in process to get the bill posted for a vote on December 7, 2009, January 7, 2010 or January 11, 2010, before Christie takes office.

Although the Senate passed a bill in February, the Assembly amended it in a number of different areas. One of the major differences is that the Senate’s version would allow both a primary-care physician to prescribe marijuana/pot and the patient to grow their own small quantities of marijuana/pot. The Assembly bill, however, prohibits patients from growing their own marijuana/pot plants. In addition, the physician’s authority to dispense marijuana is limited to one ounce per patient during a 30 day period.

Labels: bergen county compassionate medical marijuana act marijuana/pot lawyer marijuana/pot plants medical marijuana law Passaic County

9/9/2009
Frank T. Luciano, Esq.
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CRIMINAL LAW IN BERGEN AND PASSAIC COUNTIES: SUPPRESSION OF INTERCEPTION PHONE CONVERSATION

Recently, a defendant in a murder prosecution in Bergen County obtained a significant ruling from a trial judge that suppressed damning phone conversation subject of the government's wiretaps.

The core of this controversy is simple to state. During the course of a judicially authorized wiretap, the government intercepted and recorded a sensitive communication between the defendant and his trial lawyer. To confound the problem, the government agent who was responsible to monitor calls of this nature did not report the recordation of the call to his superiors or the judge who issued the original wiretap order.

As a result of these events, defendant filed a motion to dismiss the indictment claiming that the attorney/client privilege had been severely compromised. The trial court refused to dismiss the indictment because it concluded that the recording of the conversation between defendant and his attorney was inadvertent. Notwithstanding, the court decided to suppress the conversation subject of the defendant's motion and all other recorded conversations that followed. The basis of the trial court's ruling was that under New Jersey's Wiretap Act, all conversations that followed any violation of the act must be suppressed.

Labels: attorney/client privilege bergen county Criminal Law indictment intercepted conversations Murder Passaic County Wiretaps

8/12/2009
Frank T. Luciano, Esq.
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DRUG LAWS IN BERGEN AND PASSAIC COUNTIES: TAXING MEDICAL MARIJUANA USE TO SAVE THE ECONOMY?

DRUG LAW IN BERGEN AND PASSAIC COUNTIES:
TAXING MEDICAL MARIJUANA USE TO
SAVE THE ECONOMY?

The use of marijuana in California for select medical purposes has been legal since 1996; at least in concept. The federal government refuses to recognize any state law that authorizes the use of marijuana for any reason and has prosecuted both suppliers and users even when they are protected by these laws.

Recently, the Obama administration has declared that it will no longer prosecute those abiding by a state's "medical purpose" statute. There is another factor that is taking the marijuana battleline closer to legitimacy and that is the struggling economy.

California, whose 26 billion dollar deficit, is suffocating the emotions of taxpayers and lawmakers alike, is playing with the idea of legalizing marijuana's use to increase revenues with a hefty sales tax. As one official said, "[i]n hard budget times people are willing to be more creative" including the consideration of "untouchable topics." Today, California earns approximately 18 million dollars in taxes for transactions under its "medical purpose" statute.

Local authorities in California have recognized this potential stream of income as well and have implemented or increased municipal sales tax ordinances on pot transactions. A few weeks ago, the town of Oakland passed a measure that increased local sales tax on legitimate pot transactions by 15 times the former rate. The measure captured 80% of the vote. One grower applauded the event noting that the tax "is a lot cheaper than lawyers."

Labels: bergen county drug law grower marijuana Medical Marijuana Passaic County pot. sales tax

8/4/2009
Frank T. Luciano, Esq.
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CRIMINAL LAW IN BERGEN AND PASSAIC COUNTIES: INADMISSIBLE HEARSAY

CRIMINAL LAW IN BERGEN AND PASSAIC COUNTIES:
INADMISSIBLE HEARSAY

A first degree murder conviction was recently reversed because the government used hearsay declarations at trial that were determined to be inadmissible.

The defendant in this case was convicted of killing his girlfriend who was last seen at the defendant's home the night before when they ended their relationship. Shortly thereafter, her body was found in Pennsylvania. There was no evidence to establish that the murder was committed at the defendant's home or in his vehicle.

The core of the trial related to the identity of the murderer. At trial, the trial judge allowed defendant's ex-wife to testify about a threat defendant made to her several years earlier to the effect that, if she left him, he would kill her. The trial court also allowed a hearsay statement given by defendant to an employee of a local YMCA. The use of this hearsay evidence was further exacerbated by reason of the prosecutor's pointed comments to this evidence during summation.

As to the defendant's conversation with his ex-wife, the court looked to rule of evidence that related to the admissibility of "other crimes" evidence and found multiple reasons for concluding that the use of the statement was improper.

In addressing the hearsay statements given to the YMCA's employee, the court noted that the use of this statement standing alone would cause a reversal, especially given the prosecutor's comments.

Labels: bergen county Criminal Law Inadmissible Hearsay Murder Other Crimes Evdidence Passaic County Summations

7/29/2009
Frank T. Luciano, Esq.
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DRUG LAWS IN BERGEN AND PASSAIC COUNTIES: THE WEIGHT OF THE CDS IS MATERIAL ELEMENTOF A DISTRIBUTION RELATED CRIME

DRUG LAWS IN BERGEN AND PASSAIC COUNTIES:
THE WEIGHT OF THE CDS IS MATERIAL ELEMENT OF
A DISTRIBUTION RELATED CRIME

The drug statute in New Jersey makes distribution of marijuana a fourth degree offense if the weight of the drug is less than 1 ounce. The crime becomes a third degree offense if the weight of the marijuana is 1 ounce but less than 5 pounds.

In a recent case decided by the Appellate Division, a defendant was arrested at his apartment where several bags of marijuana was seized. One government report defined the weight of the pot at 155 grams. Another report identified the weight at 95.58 grams.

At trial, the court failed to provide an instruction that would require the jury to determine the weight of the marijuana. The defendant's attorney failed to object to this omission. The defendant was ultimately convicted of possession with the intent to distribute marijuana and sentenced to a term of imprisonment.

As a result of defense counsel's failure to object to the jury instruction, the court was required to determine whether the trial court's failure to instruct the jury on the weight of the substance was plain error which is a rather stringent standard for appellate review.

Notwithstanding, the Appellate Division reversed the conviction concluding that the weight of the CDS was a material element in a drug case, where the offense is possession with intent to distribute or distribution.

Labels: bergen county Defense Drug Laws marijuana Passaic County Pot Weight of CDS

7/27/2009
Frank T. Luciano, Esq.
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CRIMINAL LAW IN BERGEN AND PASSAIC COUNTIES: HABEAS CORPUS

CRIMINAL LAW IN BERGEN AND PASSAIC COUNTIES:
HABEAS CORPUS

A study from Vanderbelt University Law School and the National Center for State Courts have viewed Habeas Corpus petition filed between 2003 and 2004 and found that out of approximately 2300 randomly selected petitions, only four of then were successful. Each of the four cases, the successful petitioners were able to show insufficient evidence to convict.

Recently, the Third Circuit Court of Appeals firmed a federal court judge's decision to release a New Jersey inmate who was convicted of two murders where the inmate continued to maintain his innocence after eleven years of incarceration. The victims were part of a drug deal that went bad. Fortunately, for the defendant, this family owned a collection of funeral homes in New Jersey and had the resources to pay for two decades of litigation. The touchstone for the appellate panel's decision was grounded upon the state prosecutor's summation where the government's attorney said that he did not think that the inmate knew that the victims were to be killed. Notwithstanding, that startling concession, the inmate was convicted on a felony murder concept which allows liability for murder to be imposed upon an accomplice of the actual killer. Need to interject that this was the murder was part of a drug deal that went wrong.

Labels: bergen county Criminal Law Drug Deals Felony Murder Habeas Corpus New Jersey inmate Passaic County

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

7/15/2009
Frank T. Luciano, Esq.
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DRUNK DRIVING (DWI/DUI) IN BERGEN AND PASSAIC COUNTIES: MUNICIPAL COURT JUDGES ARE DISCIPLINED FOR DWI CONVICTIONS

DRUNK DRIVING (DWI/DUI) IN BERGEN AND PASSAIC COUNTIES:
MUNICIPAL COURT JUDGES ARE DISCIPLINED FOR DWI CONVICTIONS

A few weeks ago, the Supreme Court disciplined two municipal court judges for their drunk driving convictions. Those judges were Robert Jones who was a municipal court judge in Livingston and Peter Tourson, who presided in Cape May, Stone Harbor and Middletown.

Tourson was arrested when he was driving the wrong way on a road in Cape May County and forced a driver onto the shoulder of the road to avoid the crash. At police headquarters, Tourson attempted to apply Chapstick to his lips which could impede the reliability of the breath test. When the police officer confiscated the tube. Tourson produced a second stick of Chapstick and attempted to apply it to his lips again. That tube was also confiscated. Later, Tourson attempted to place a penny under his tongue to further interfere with the reliability of the breath test.

Jones was arrested in February 2008 in Parsippany, Troy Hills. While he denied having anything to drink, his blood alcohol concentration was 0.16%. The ethics committee made special comment about Jones' dishonesty when asked about alcohol consumption.

Under the Supreme Court guidelines, judges charged with or convicted of drunk driving are disqualified from handling cases of that type for one year.

Labels: BAC bergen county Bergen County Lawyer Blood Alcohol Concentration drunk driving DWI Convictions DWI/DUI Municipal Court Judges new jersey attorney Passaic County Passaic County Lawyer

7/13/2009
Frank T. Luciano, Esq.
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CRIMINAL LAW IN BERGEN AND PASSAIC COUNTIES: FORFEITURE OF PUBLIC OFFICE AS A RESULT OF A CRIMINAL CONVICTION

CRIMINAL LAW IN BERGEN AND PASSAIC COUNTIES:
FORFEITURE OF PUBLIC OFFICE AS A RESULT OF A CRIMINAL CONVICTION

New Jersey has a statute that allows a sentencing judge to disqualify a defendant convicted of a crime from holding public office if the subject of the criminal conviction involves or "touches" upon the defendant's public position.

The Appellate Division has recently reviewed the application of that statute in a case where a police officer pled guilty to a 4th degree sexual contact offense. The event involved a nineteen year old victim, who the police officer claimed was his girlfriend. The trial court ruled that the defendant's conduct was at complete odds with his responsibility as a police officer and granted the government's application to permanently forfeit all future public employment. The police officer appealed. The appellate court reversed the trial court's decision. The court concluded that the police officer's illicit conduct was not specific to his public office. It bolstered its decision by noting that public office forfeiture was a harsh penalty and therefore, the statute should be narrowly applied.

Notably, a dissent was filed in the case before the Appellate Division. As a result, it may find its away before the New Jersey Supreme Court before to long.

Labels: Appellate Division bergen county Criminal Conviction Criminal Law Bergen and Passaic Counties Forfeiture Passaic County Police Officer Public Office Sexual contact

6/24/2009
Frank T. Luciano, Esq.
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CRIMINAL LAW IN BERGEN AND PASSAIC COUNTIES: "BLACK BOX" EVIDENCE IN A VEHICULAR HOMICIDE CASE

CRIMINAL LAW IN BERGEN AND PASSAIC COUNTIES:
"BLACK BOX" EVIDENCE IN A VEHICULAR HOMICIDE CASE

There are over 45 million vehicles in the United States that contain a hidden recording device known as event-data recorders. These devices which are sometimes called "black boxes" not only "wake-up" the deployment of the vehicle's air bag in the event of an accident, they also record specific data at the time of the crash and prior to the crash. Pre-crash data may include the vehicle's speed, the engine's RPM, seatbelt use, braking applications, change in speed and steering corrections.

Obviously, information of this nature is of great importance in a vehicular homicide prosecution and other motor vehicle related crimes. Unfortunately, there are not many cases that address the issues associated with the admissibility of the black box in a civil or criminal trial. Here are a few comments and suggestions:

    1.    After you are engaged by a client, make immediate efforts to locate the black box. If the government has already retrieved the device, you should secure the data on the device as soon as possible and engage an expert to interpret it. Do not lose sight of the fact that the government's removal of a black box from your client's vehicle has fourth amendment implications.

    2.   Always test the scientific reliability of a black box under the Daubert. While some jurisdictions have endorsed the devices' scientific reliability others have not.

    3.   Make sure that the government is able to qualify the data from the black box under an exception to the hearsay rule.

    4.   Finally, remember that black box evidence can be challenged because the data could have been corrupted by mishandling or exposure to electronic sources. In addition, the technician who downloads the information may not be qualified.

Labels: arrest attorney bergen county black box Criminal Law Criminal Law in Bergen County Criminal Law in Passaic County daubert lawyer motor vehicle related cases new jersey attorney Passaic County vehicular homicide

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

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