The Double Jeopardy Clause prohibits the government from, among other things, punishing a citizen twice for the same crime.  On occasion, a trial court will impose a sentence that is not consistent with New Jersey’s Criminal Code. If the sentence is more lenient than required by the Code, the government may appeal the sentence contending that it was illegal. Under those circumstances, the courts in this state have regularly concluded that an illegal sentence can be vacated and a new sentence imposed without offending the Double Jeopardy Clause.  Recently, the Appellate Division addressed this issue in the context of a marijuana prosecution.

In the case before the court, defendant pled guilty to various drug-related offenses, including two counts of possession of marijuana with the intent to distribute. The plea arrangement allowed  defendant to attend and complete a term in New Jersey’s Drug Court with the understanding that, if he failed to complete the Drug Court- sentence, he would be resentenced to a term of five years with an 18 month parole disqualifier, which was a sentence consistent with the so-called Brimage guidelines.  Parenthetically, in the case titled State v. Brimage, the Supreme Court noted a disparity of sentencing treatment across the state for certain drug related offenses and requires the preparation of uniform guidelines for the sentencing in cases of that type.

Later, defendant was terminated from the Drug Court, pled to a violation of probation and was sentenced to a term of imprisonment for three years.  At sentencing, the government did not demand a parole disqualifier consistent with the original plea agreement. Recognizing its mistake, it later returned to the court arguing that the three year term was illegal and that a parole disqualifier was required. The case found its way to the Appellate Division.

On appeal, defendant argued that the state waived the parole disqualifier contained in the original plea agreement. The government, on the other hand, argued that the sentence was illegal. The court rejected this argument, observed that the double jeopardy clause requires some sense of finality, redefined the illegal sentence concept and concluded that a violation of the Brimage guidelines did not render the sentence illegal.

The New Jersey Supreme Court recently decided a case that related to the state’s expungement statute and its application to public employees. The case involved a public employee who had previously pled guilty to a disorderly persons offense.  The conviction was associated with the public employee’s job responsibility.  The plea agreement require the public employee to forfeit her public employment and barred her from future public employment, as required by  statute.

Years later, the public employee filed an expungement application and contended that, apart from expunging the disorderly persons offense, the order of forfeiture should be expunged as well. The public employee was successful at the trial level and in the Appellate Division. The government, however, took the case to the Supreme Court for further review.

There the Court concluded that the order of forfeiture issue must be severed from the expungement application and stated in essence that the forfeiture of public employment order could not be expunged. In rendering its decision, the Court recognized that,  although the expungement statute must be broadly and liberally applied, there was a countervailing statutory policy that required a forfeiture of public employment, whenever the employee’s illicit conduct “involves and touches” on the public employee’s office.

In short, the Court concluded that while the applicant was entitled to obtain an expungement for the prior disorderly persons conviction, the order of forfeiture would not be allowed.

In February, 2007, the state police were summoned to a home in Farmingdale, New Jersey.  There was a report that screams were emanating from the house. The male occupant answered the door dressed in a bathrobe.  He explained that the screams were from his girlfriend and that they were made in the fit of passion during sexual intercourse.  Shortly thereafter, the girlfriend appeared at the door dressed in a bathrobe and confirmed the boyfriend’s statement.

Notwithstanding the explanation, the state trooper requested identification and followed the occupant to his bedroom where the identification was located.  The defendant did not complain about the state trooper’s intrusion.  In the bedroom, the trooper smelled raw marijuana and saw the male occupant push a tray under his couch.  He also saw a bag with loose marijuana and some marijuana plants.  The search that followed uncovered fifteen marijuana/pot plants and 12.5 ounces of marijuana.  He was charged with a first degree offense.

When the defendant lost his motion to suppress evidence, he plead guilty to the crime of operating a facility for the production of marijuana/pot.  He received a sentence of ten years with a thirty-nine month parole disqualifier.  On appeal, this court concluded that the trooper’s entered the home was consistent with the community-care-taking exception to the Fourth Amendment and that was so even if the trooper had no particular reason to disbelieve the defendant and his girlfriend.

On September 19, 2009, the Massachusetts Cannabis Reform Coalition sponsored the annual Boston Freedom Rally, which is now in its 20th year.  An estimated 70,000 people visited a park where the rally was conducted.

Despite the occasion, there were only three arrests, which related to distribution.  Over 100 tickets issued, however, for possession of marijuana/pot.  These “tickets” are the product  of a new law in Massachusetts that effectively decriminalized possession of less than 1 ounce of marijuana/pot.
                                   
Although the Boston Police Department readily admitted that the crowd was rather tranquil, these law enforcement agents were frustrated by participants at the rally who followed the police with audio devices and video cameras to alert the crowd of their presence and to prevent illicit official conduct.

CRIMINAL LAW IN BERGEN AND PASSAIC COUNTIES:
THE RIGHT TO A SPEEDY TRIAL
(Part 2)