CRIMINAL LAW IN BERGEN AND PASSAIC COUNTIES: BAIL FOFEITURES 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.

CRIMINAL LAW IN BERGEN 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.

CRIMINAL LAW IN BERGEN AND PASSAIC COUNTIES: EVIDENCE TAKEN IN VIOLATION OF DEFENDANTS' RIGHTS CAN BE USED FOR IMPEACHMENT PURPOSES

Prior to the trial in that case, the government planted an informant in the defendant's cell and elicited harmful admissions relating to the murder and robbery of the victim. The defendant ultimately testified at trial and denied complicity in the crime. When the government sought to use the informant as a witness to contradict the defendant's testimony, the defendant objected on the basis of his Sixth Amendment Right to counsel. The trial court allowed the informant's testimony to impeach the defendant's testimony. The Kansas Supreme Court determined that the trial court's ruling was in error. The United States Supreme Court reversed that decision and endorsing the trial court's original ruling. The Court concluded that the exclusion of impeachment evidence under the circumstances of the case was outweighed by the need to prevent perjury and to insure that integrity of the trial process. In short, the court found that the philosophical underpinnings of the exclusionary rule was overwhelmed by the need to ensure truth in the criminal trial process.

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

DRUG LAWS IN BERGEN AND PASSAIC COUNTIES: PROSECUTOR'S VETO IN THE DRUG COURT

New Jersey's Drug Court has been rather successful. Some of the statistics would show that: (a) over 70% of its graduates

have obtained or retained employment; (b) almost 70% of its candidates remain in the program; (c) candidates have fewer

relapses; and, (d) more babies are being born drug-free.

In order for a defendant to be admitted into the Drug Court, the prosecutor must consent. In those cases where a prosecutor

rejects a defendant's application into a Drug Court, the law allows admission over a prosecutor's objection if it can be shown

that there was a gross and patent abuse of the prosecutor's discretion. In order to accomplish this difficult task, the defendant

must show that: (a) the prosecutor did not consider all relevant factors; (b) the decision was based on irrelevant or inappropriate

factors; or (c) there was a clear error in judgment.

Unfortunately, case law on this issue has concluded rather clearly that a prosecutor's veto of a defendant's application to a drug

court "will be rarely overturned."

DRUG LAWS IN BERGEN AND PASSAIC COUNTIES: NEW MEDICAL MARIJUANA LEGISLATION

Last week, a congressional representative from Maryland introduced the "Medical Marijuana Patients' Protection Act." It was co-sponsored by 13 bi-partisan members of Congress. The act would change marijuana's classification from a Schedule I drug, which is a schedule where the substance has no medical value to a Scheduled II drug, which recognizes the substance's medical value. The statute would also prohibit federal interference with local or state laws that authorize the use of marijuana for medical purposes. The sponsor of the Bill, Barney Frank said "it is time to recognize marijuana's medical capabilities and to develop a comprehensive plan that will provide access to medical marijuana protection for the hundreds of thousands of sick Americans that benefit from its use."

Criminal Law in Bergen and Passaic Counties: Prior Bad Acts Evidence (Part 2)

Criminal Law in Bergen County: New Jersey's Pre-Trial Intervention Program (Part 4)

Criminal Law in Bergen County: New Jersey's Pre-Trial Intervention Program (Part 1)

Drunk Driving (DWI/DUI) in Bergen County: The Alcotest and The Responsibility to Recalibrate Every Six Months

DRUNK DRIVING (DWI/DUI) IN BERGEN COUNTY:

THE ALCOTEST AND THE RESPONSIBILITY TO

RECALIBRATE EVERY SIX MONTHS

In 2008, the New Jersey Supreme Court rendered a decision titled State v. Chun. In that case the court authorized the use of the Alcotest breathalyzer in drunk driving prosecutions where certain conditions have been met. One of those conditions required the government to establish that the Alcotest had undergone a semi-annual recalibration.

In a recent Appellate Division case titled State v. Pollock, the defendant contended that the results of the Alcotest should not have been admitted into evidence during his trial because the equipment used in his case had been recalibrated seven months prior to his arrest. The appellate court rejected the defendant’s argument and concluded that the semi-annual recalibration condition required by the Supreme Court in State v. Chun did not apply to a defendant who was convicted prior to the decision in Chun or where the sentencing of a defendant had been deferred pending the ruling of the Chun case. In support of its position, the court observed that the language contained in the Order that issued by the Supreme Court in Chun which required the six month recalibration responsibility suggested a prospective application only.

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.

Criminal Law in Bergen County: Ineffective Assistance of Counsel

CRIMINAL LAW IN BERGEN COUNTY:

CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL

On many occasions, a disgruntled defendant will claim on appeal or in a post-conviction relief application that he was denied the effective assistance of counsel. Suffice it to say, arguments of this nature seriously confound an overriding philosophy of the criminal justice system to maintain the finality of a plea agreement or a jury verdict.

Resultantly, the standard for analyzing contentions of this nature are rather narrowly drawn. Specifically, a defendant must establish that his lawyer’s performance was so deficient that there existed "a reasonable probability that, but for counsel’s unprofessional errors, the results of the proceeding would have been different". It has been said that the core of this concept is whether the "error" committed by the negligent lawyer was so serious as to undermine the court’s confidence of a jury verdict or a plea agreement.

Moreover, a court is not required to conduct a plenary hearing to analyze ineffective counsel claims in all cases. If it is determined that the defendant’s claim is vague, conclusionary or speculative a hearing is not required. Nor, is one required if the trial court determines that a hearing will not aid the court’s analysis of the defendant’s claim.

Criminal Law in Bergen and Passaic Counties: The Right to a Speedy Trial (Part 2)

The United States Supreme Court has recognized the "impossibility" of determining, with precision, when an accused's right to a speedy trial has been denied when it observed: "[w]e find no constitutional basis for holding that the speedy trial right can be quantified into a specified number of days months." Thus, a delay of five years was held not to violate a defendant's speedy trial right, while a delay of a mere ten months was determined to be a deprivation of a defendant's speedy trial right.

The courts in New Jersey have experienced a similar inability to calculate the extent of a tolerable delay in this area of the law with anything approaching mathematical exactitude. It has been said, however, that delay must be "reasonably explained and justified". Indeed, it was observed that "there comes a when delay extended for an extraordinary length of time so weights the scale ... that time becomes the decisive factor." At the very least, when the delay is "excessively long," "the burden upon defendant to satisfy the other factors is correspondingly diminished."