Attorney Blog

CRIMINAL ATTORNEY INBERGEN AND PASSAIC COUNTIES: VIDEOTAPING VICTIM'S INTIAL INTERVIEW IN CHILD SEX ABUSE CASES

ftluciano@aol.com (Blog Author)27987 — Wed, 10 Mar 2010 08:00:00 EST

Sixteen years ago in a case titled State vs. Michaels, New Jersey’s Supreme Court suggested that an initial interviews with child victim of sex abuse should be videotaped. That conclusion was premised upon the court’s recognition that children are extremely susceptible to suggestive or coercive questioning.

In recent times, a case has been taken back to the Supreme Court to determine whether videotaping of an initial interview should be a per se rule of law in all child sex abuse cases..

In the case now before the Court, the child victim was interviewed by a investigator with special skills in this area of law enforcement where the interview was videotaped. Unfortunately, after the interview was completed the government learned that the videotape had malfunctioned. Shortly thereafter, the investigator sat down with pencil and paper and recreated the interview. Two months later, the investigator using his post-interview notes prepared a formal report and destroyed the original notes.
The defendant was ultimately convicted of the offense and was sentenced to a thirty-year term of imprisonment.

Its more than interesting to note that no other jurisdiction in the country imposes a bright line principle requiring the videotape of interviews of young sex abuse victims.

MARIJUANA/POT ATTORNEY IN BERGEN AND PASSAIC COUNTIES: NEW JERSEY DRUG COURT

ftluciano@aol.com (Blog Author)27939 — Tue, 09 Mar 2010 08:00:00 EST

As of Saturday, August 25, 2007, federal and state government spent approximately $33,000,000,000 in its “War on Drugs”. (Yes, I have the right number of zeros). Moreover, on or about that date 1,032,638 people were arrested for drug related offenses. In that year, the state of New Jersey paid $37,223 to imprison one inmate where there was a 53% chance that the inmate would return to prison.

New Jersey’s Drug Court has proven to be a great improvement to a bad situation. Apart from the fact that the recidivist rate for a Drug Court candidate is 9%. The costs of maintaining a candidate in a Drug Court program is far less.

MARIJUANA/POT ATTORNEY IN BERGEN AND PASSAIC COUNTIES: PUBLIC HOUSING OFFENSE

ftluciano@aol.com (Blog Author)27873 — Mon, 08 Mar 2010 08:00:00 EST

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.

MARIJUANA/POT ATTORNEY IN BERGEN AND PASSAIC COUNTIES: POSSESSION OF A WEAPON IN A DRUG RELATED OFFENSE

ftluciano@aol.com (Blog Author)27734 — Fri, 05 Mar 2010 08:00:00 EST

New Jersey drug laws create a special crime where a person is in possession of a firearm while “in the course of” committing, attempting or conspiring to commit a drug offense within 500 ft. of a public facility. The consequences of a coviction under this section of the statute are dire.

Under the law, the defendant does not have to have actual possession of the gun. Constructive possession will suffice. The term “in the course of” has been broadly interpreted as well. In one case a defendant was found guilty under the statute where he was outside his apartment when the gun and drugs were found inside. The outcome may have been different if the defendant was farther away or the gun was separated from the drugs by a greater distance.

MARIJUANA/POT ATTORNEY IN BERGEN AND PASSAIC COUNTIES: YOUTHFUL OFFENDER EXPUNGEMENTS

ftluciano@aol.com (Blog Author)27713 — Thu, 04 Mar 2010 08:00:00 EST

A person who is 21 years old or younger may be eligible for an expedited expungement where the crime is one specifically enumerated in the statute (i.e. possession of drugs or drug paraphenalia, distribution of small qualitites of marijuana or hashish, etc.)

Under these circumstances a youthful offender can apply for an expungement within one year after the defendant completes probation, parole or a jail term and pays all fines which ever occurs last. The opportunity will be lost if a defendant has: (a) violated a term or parol or probation; (b) a prior or subsequent conviction or (c) a prior or subsequent criminal accusation that was dismissed because of a diversionary program.

MARIJUANA/POT ATTORNEY IN BERGEN AND PASSAIC COUNTIES: DRUG PARAPHERNALIA AND THE ELEMENT OF INTENT (PART II)

ftluciano@aol.com (Blog Author)27615 — Wed, 03 Mar 2010 08:00:00 EST

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.

MARIJUANA/POT ATTORNEY IN BERGEN AND PASSAIC COUNTIES: DRUG PARAPHERNALIA AND THE ELEMENT OF INTENT

ftluciano@aol.com (Blog Author)27588 — Tue, 02 Mar 2010 08:00:00 EST

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.

MARIJUANA/POT ATTORNEY IN BERGEN AND PASSAIC COUNTIES: THE CHAIN OF EVIDENCE CONCEPT

ftluciano@aol.com (Blog Author)27502 — Mon, 01 Mar 2010 08:00:00 EST

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.

DRUNK DRIVING (DWI/DUI ATTORNEY IN BERGEN AND PASSAIC COUNTIES: CRIMINAL LIABILITY FOR DRIVING ON THE REVOKED LIST

ftluciano@aol.com (Blog Author)27153 — Tue, 23 Feb 2010 08:00:00 EST

New Jersey has recently passed a law that will become effective sometime in June 2011. The law is conceived to create a criminal violation for driving on the revoked list where the underlying cause of revocation was either a drunk driving conviction or a refusal conviction.

Specifically, the first section of the law states that if a defendant has been convicted of two driving while revoked offenses during the same term of license suspension created by the drunk driving or refusal offense, it will be a crime of the fourth degree.

The second component of the law allows for a fourth degree conviction if the defendant is operating a vehicle while on the revoked list where the underlying cause of revocation was a second drunk driving or refusal conviction.

A mandatory jail term of not less than 180 will be imposed, where the defendant will not be eligible for parole if he/she violates any of these two sections of the law.

MARIJUANA/POT ATTORNEY IN BERGEN AND PASSAIC COUNTIES: STREET ENCOUNTERS

ftluciano@aol.com (Blog Author)27069 — Mon, 22 Feb 2010 08:00:00 EST

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.

MARIJUANA/POT ATTORNEY IN BERGEN AND PASSIAC COUNTIES: SELECTIVE PROSECUTION DEFENSE IN MARIJUANA CASES

ftluciano@aol.com (Blog Author)26816 — Tue, 16 Feb 2010 08:00:00 EST

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 selctively 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.

MARIJUANA/POT ATTORNEY IN BERGEN AND PASSAIC COUNTIES: SCHOOL PROPERTY EXCEPTION TO THE WARRANT REQUIREMENT

ftluciano@aol.com (Blog Author)26751 — Mon, 15 Feb 2010 08:00:00 EST

The New Jersey Supreme Court recently affirmed the conviction of a high school student for possession of marijuana and distribution of other Controlled Dangerous Substance (CDS), where the defendant's school mate who was under the influence of a CDS told school authorities that the defendant sold him the drugs.

On appeal, the defendant contended that a search of his vehicle in the school parking lot which determined incriminating evidence was a violation of the Fourth Amendment's prohibition against unreasonable searches and seizures.

In analyzing the issues, the court noted that the probable cause standard required by the Fourth Amendment may not be appropriate when the police did not participate in the search and specifically refer to a longstanding principal of law in the state that said, in essence, that school if officials have reasonable grounds to believe that there is illicit conduct on school property, the search of a student's locker could be justified.

Although the defendant argued that probable cause standard should be used for purposes of justifying a search of a student's car on school grounds, the court rejected the notion and concluded that the reasonableness standard should control the outcome of the case.

MARIJUANA/POT ATTORNEY IN BERGEN AND PASSAIC COUNTIES: SCHOOL PROPERTY EXCEPTION TO THE WARRANT REQUIREMENT

ftluciano@aol.com (Blog Author)26583 — Thu, 11 Feb 2010 08:00:00 EST

MARIJUANA/POT LAWYER IN BERGEN AND PASSAIC COUNTIES: INCREASE IN MARIJUANA/POT USE

ftluciano@aol.com (Blog Author)25497 — Fri, 22 Jan 2010 08:00:00 EST

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.

DRUNK DRIVING (DWI/DUI) LAWYER IN BERGEN AND PASSAIC COUNTIES: A PRIOR REFUSAL CONVICTION CAN INCREASE PENALTIES FOR A SUBSEQUENT DWI/DUI CONVICTION

ftluciano@aol.com (Blog Author)25341 — Wed, 20 Jan 2010 08:00:00 EST

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.”

LEGAL MALPRACTICE IN BERGEN AND PASSAIC COUNTIES: ATTORNEY MUST USE CAUTION WHEN DISENGAGING ATTORNEY/CLIENT RELATIONSHIP

ftluciano@aol.com (Blog Author)25029 — Thu, 14 Jan 2010 08:00:00 EST

On many occasions, an attorney will decide that he/she no longer wishes to represent a client. That decision can be grounded upon a whole constellation of reasons. When that occurs, an attorney must be extremely careful as to the manner and method in which that disengagement occurs, especially where the statute of limitation time-bar is looming. Under an attorney’s Rules of Professional Conduct, the attorney may withdraw from a client’s case only if it will not have a material adverse effect on the client. Moreover, these Rules of Professional Responsibility require an attorney to take all steps reasonable necessary to protect the client’s interest. If an attorney decides to quit an attorney/client relationship on the eve of the statute of limitations, liability may be imposed against the attorney.

In one case, an attorney was found not to have been negligent when he abandoned an attorney/client relationship several weeks before the statute of limitations had run. In that case, the court concluded that the issue was extremely fact sensitive and since the client in that case was a sophisticated business person who worked with lawyers on a regular basis, it was not unreasonable to think that the client would be able to engage an attorney before the statute of limitations ran. In another recent case, where the client was not as sophisticated, the court was disinclined to dismiss the client’s claim against the attorney for abandoning the client on the eve of the statute of limitations.

DRUNK DRIVING (DWI/DUI) LAWYER IN BERGEN AND PASSIAC COUNTIES: DESTRUCTION OF EXCULPATORY EVIDENCE

ftluciano@aol.com (Blog Author)24990 — Wed, 13 Jan 2010 08:00:00 EST

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.

DRUNK DRIVING (DWI/DUI) LAWYER IN BERGEN AND PASSAIC COUNTIES: A DEFENDANT'S SPEEDY TRIAL RIGHT WORKS!

ftluciano@aol.com (Blog Author)24934 — Tue, 12 Jan 2010 08:00:00 EST

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.

CONSUMER FRAUD LAWYER IN BERGEN AND PASSAIC COUNTIES: THE NEED FOR SPECIFICITY IN PLEADING A CONSUMER FRAUD CASE

ftluciano@aol.com (Blog Author)24863 — Mon, 11 Jan 2010 08:00:00 EST

While New Jersey’s Consumer Fraud Act (CFA) is considered to be one of the broadest consumer protection laws in the country, a number of courts are requiring CFA claimants to specifically plead the major elements of their theory of liability. Those elements include an unlawful practice under the CFA, an ascertainable loss and a causal relationship between the unlawful practice and the ascertainable loss.

Two recent decisions from the Federal District Court in New Jersey have indicated that CFA complaints will be reviewed with rather close scrutiny to make sure that the allegations are particularly identified in such a way as to allow the court an opportunity to determine whether there is a legitimate claim under the CFA.

The core of the courts’ decisions were grounded upon a rule that specifically requiring allegations of fraud to be stated with particularity in a complaint. New Jersey’s state court rules has a similar provision.

MARIJUANA/POT LAWYER IN BERGEN AND PASSAIC COUNTIES: GROWING MARIJUANA/POT PLANTS IN NEW JERSEY

ftluciano@aol.com (Blog Author)24562 — Wed, 06 Jan 2010 08:00:00 EST

It is against the law in New Jersey to grow a marijuana plant. If, however, you are arrested for growing 10 or more marijuana plants, you can be charged with a first degree crime of maintaining or operating a controlled dangerous substance facility. The consequences of a conviction for that offense are staggering and include a jail term of up to twenty years where one-half to one-third must be served before you can become parole eligible. Fines can approach $750,000. If you are growing the substance in your home, the government will probably file a civil forfeiture action to seize and sell that home. It is important to know that the statute applies irrespective of whether the plants are mature or mere seedlings.

MARIJUANA/POT LAWYER IN BERGEN AND PASSAIC COUNTIES: DRUG CASE REVERSED BECAUSE OF JUDGE'S COERCIVE INSTRUCTION TO JURY

ftluciano@aol.com (Blog Author)24518 — Tue, 05 Jan 2010 08:00:00 EST

In a recent appeal division case, a drug conviction was reversed because the trial court provided special instruction to a jury in order to nurture a deadlock into a verdict. In analyzing the issue, the appeals court first observed that one of the core concepts associated with the right to a jury trial is a need for the honest judgment of each juror, uninfluenced by the pressures that may be asserted by a trial court or the government’s lawyer. Although a trial judge has the discretion to request a jury to continue its deliberation after it has declared an inability to agree on a verdict, that discretion must be cautiously applied. Where, the jury has identified a deadlock “after a reasonable period of deliberation” a court should not request or suggest further effort.

In the case before the appellate panel, the jury had advised the judge on a number of occasions over two days that it was not able to reach a verdict. Notwithstanding, the trial court continued to try and convince the jury that it was a simple case, involving approximately four witnesses. In addition, the trial court attempted to summarize the evidence to convince the jury of the case’s simplicity. As a result, the appellate division concluded that the trial judge’s instructions to the jury to continue the deliberations were coercive and reversed the jury’s guilty verdict.

LEGAL MALPRACTICE LAWYER IN BERGEN AND PASSAIC COUNTIES: MUNICIPAL JUDGE CHARGED WITH ETHICAL VIOLATION

ftluciano@aol.com (Blog Author)24169 — Tue, 29 Dec 2009 08:00:00 EST

The New Jersey Advisory Committee on Judicial Conduct has recently charged the Municipal Court Judge of Philipsburg with misuse of his office in a dispute involving his son's motor vehicle. In this case, a juvenile damaged a car owned by the judge's son. Thereafter, the judge went to the police station to determine whether law enforcement agents had contacted the juvenile's parents. When the mother ultimately called headquarters, she was told that the "judge" was interested in speaking with her. When the mother finally contacted the judge, it is alledged that the judge berated her for her lack of supervision.

The ACJC alledged that the judge's effort to enlist law enforcement agents to contact the juvenile parents was a deliberate show of force. In addition, it was said that the judge displayed a lack of candor in responding to the committee's request and that his conversation with the juvenile's mother was improperly intemperate.

LEGAL MALPRACTICE LAWYER IN BERGEN AND PASSAIC COUNTIES: MUNICIPAL JUDGE CHARGED WITH ETHICAL VIOLATION

ftluciano@aol.com (Blog Author)24168 — Tue, 29 Dec 2009 08:00:00 EST

LEGAL MALPRACTICE LAWYER IN BERGEN AND PASSAIC COUNTIES: MUNICIPAL JUDGE CHARGED WITH ETHICAL VIOLATION

ftluciano@aol.com (Blog Author)24167 — Tue, 29 Dec 2009 08:00:00 EST

LEGAL MALPRACTICE LAWYER IN BERGEN AND PASSAIC COUNTIES: CAN A THIRD PARTY PAY THE ATTORNEY FEES OF ANOTHER?

ftluciano@aol.com (Blog Author)23826 — Tue, 22 Dec 2009 08:00:00 EST

New Jersey’s Rules of Professional Conduct prohibit an attorney from accepting the payment of fees from anyone other than a client except under certain well defined circumstances.

Recently, New Jersey’s Supreme Court addressed the question of whether a company that was the target of a grand jury investigation could engage and pay attorneys to represent their employees who had been subpoenaed to testify before the grand jury. In that case, the court answered the question affirmatively with the following conditions: (a) that the client provides his/her informed consent to the potential conflict; (b) that the payor is prohibited from interfering with the lawyer’s professional responsibility to the client; (c) that there can be no current attorney/client relationship between the lawyer and the payor; (d) that the lawyer cannot communicate information received from the client to the payor; (e) that the payor must pay the attorney’s invoices faithfully and timely; and (f) that the payor’s responsibility to pay the lawyer cannot be relieved absent a court order returned on a formal motion with notice to all relevant parties.

MARIJUANA/POT LAWYER IN BERGEN AND PASSAIC COUNTIES: RELIEF IN SCHOOL ZONE CASES?

ftluciano@aol.com (Blog Author)23740 — Mon, 21 Dec 2009 08:00:00 EST

A legislative committee in New Jersey just voted to pass a bill that could do away with minimum mandatory terms of imprisonment, in some cases, for non-violent offenders, including those convicted in a drug-free school zone. The bill would empower judges to consider a number of mitigating factors to allow a non-custodial term for school-zone convictions, including whether: (a) the school was in session; (b) children were present; and (c) the defendant had prior convictions.

One of the sponsors of the measure observed that while minimum mandatory jail terms make a state look tough of crime, they do little in terms of creating justice. Unfortunately, this legislative movement was tied to another amendment that would increase the penalties for certain drunk driving offenses (DWI).

MARIJUANA/POT LAWYER IN BERGEN AND PASSAIC COUNTIES: COLLEGE SCHOLARSHIP MAY NO LONGER BE IN JEOPARDY FOR POT CONVICTION

ftluciano@aol.com (Blog Author)23636 — Fri, 18 Dec 2009 08:00:00 EST

Approximately ten years ago, a federal law composed by Rep. Mark Souder (R-Ind.) was enacted that required federally funded scholarships and other aid packages to be forfeited for minor drug convictions. The statute was known as the "Aid Elimination Penalty." Statistically, the law tended to punish low socio-economic students who most needed financial assistance to complete their college education.

It 2009, a collection of Democrats sought to resolve the harsh consequences created by the statute. That effort was meet by signifigant opposition from Rep. Souder who attempted to stultify the Democrats' effort. Notwithstanding, Rep. Souder's counter-measures were defeated, thus creating the opportunity for students with drug posession convictions to continue to receive financial assistance from the federal government.

LEGAL MALPRACTICE LAWYER IN BERGEN AND PASSAIC COUNTIES: SECRET MASTER RETAINER AGREEMENT INVALID

ftluciano@aol.com (Blog Author)23607 — Fri, 18 Dec 2009 08:00:00 EST

An Appellate Division panel recently concluded that a law firm was barred from recovering over $75,000 in unpaid legal fees from a client because the retainer agreement offended a Rule of Professional Conduct that requires all lawyers to send to the client any writings memorializing fee agreements with “a reasonable” time after commencing the representation.

In the case subject of the Appellate Division’s decision, the client signed a rather short retainer agreement obliging the client to pay the law firm on a regular basis for hourly “billable services” defined to include usual attorney tasks (i.e. telephone calls, letters, briefs, inter-office conferences, court appearances, etc.) This agreement also referenced a “master retainer” which identified the law firm’s “standard billing practice.” This master retainer agreement was an 18 page single spaced document which included a responsibility to pay for some rather unusual and extraordinary services not referenced in the agreement signed by the client.

While the trial court issued a judgment in favor of the law firm, the Appellate Division reversed. The case was remanded with instructions to allow the law firm to collect only fees defined by the retainer signed by the client.

MARIJUANA/POT LAWYER BERGEN AND PASSAIC COUNTIES: LAME DUCK MEDICAL MARIJUANA LAW?

ftluciano@aol.com (Blog Author)23568 — Thu, 17 Dec 2009 08:00:00 EST

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.

MARIJUANA/POT LAWYER IN BERGEN AND PASSAIC COUNTIES: INTERNATIONAL EFFORT TO DECRIMINALIZE OR LEGALIZE PERSONAL USE OF MARIJUANA

ftluciano@aol.com (Blog Author)23513 — Wed, 16 Dec 2009 08:00:00 EST

In August 2009, the Mexican government passed a law decriminalizing the possession of marijuana/pot for personal use. Under this new law, personal users will not face any sanctions until there is a third offense. At that time, addiction treatment will be required.

In that same month last year, the Supreme Court of Argentina ruled that it was a violation of the country's constitution to arrest people for the possession and/or use of small quanities of marijuana in the privacy of their homes. The court also suggested that the government treat addicts as patients and not prisoners.

In Columbia, its top court ruled in September 2009 that possession of drugs for personal use could not be criminalized. The core of that decision was that a defendant's personal use of drugs was a personal and private right that did not ordinarily harm others and to that extent, punishment was inappropriate. This court also said that drug addiction should require treatment and not jail time.

MARIJUANA/POT LAWYER IN BERGEN AND PASSAIC COUNTIES: RELIEF IN SCHOOL ZONE CASES?

ftluciano@aol.com (Blog Author)23420 — Tue, 15 Dec 2009 08:00:00 EST

DRUNK DRIVING (DWI) IN BERGEN AND PASSAIC COUNTIES: THE ALCOTEST'S TWENTY-MINUTE WAIT REQUIREMENT

ftluciano@aol.com (Blog Author)23374 — Mon, 14 Dec 2009 08:00:00 EST

In the case of State v. Chung, the New Jersey Supreme Court concluded that the Alcotest was a reliable device for purposes of assessing the blood alcohol concentration of a drunk driving suspect. In that decision, the court defined the procedure that should be used for purposes of administrating the test. One component of that procedure required a twenty-minute waiting-period, in which the Alcotest operator was required to observe the suspect. The purpose of the twenty-minute observation period is to make sure that the suspect did not regurgitate or place anything in his/her mouth that would effect the machine’s reliability.

Recently, the Appellate Division determined that the Alcotest operator was not the only person who could satisfy the twenty-minute observation period, even though the plain language of the Chung opinion required that conclusion. The Appellate Division determined that this simple task could be accomplished by someone other than the administrator of the test.

LEGAL MALPRACTICE LAWYER IN BERGEN AND PASSAIC COUNTIES: THE AFFIDAVIT OF MERIT MAY BE REQUIRED IN THIRD-PARTY CLAIMS CASES

ftluciano@aol.com (Blog Author)23173 — Thu, 10 Dec 2009 08:00:00 EST

The Affidavit of Merit Statute (Statute) was conceived to “weed out” frivolous claims against professionals (i.e. attorneys, doctors, engineers, etc.). Under the Statute, when a professional is sued, the claimant is required to submit an affidavit within 90 days of the filing of a complaint that is authored by a similar professional with special skills concluding that the professional, subject of the claim, was negligence.

Anyone who has been sued by another can assert claims against third-parties to require those third-parties to pay all or part of the injured party’s losses. In those cases where the third-party is a professional, the question whether the Statute applies is always an issue.

Recently, the Appellate Division determined that the Statute would not apply to a defendant/landowner who filed a third-party complaint against the engineer who prepared a faulty survey for the defendant/landowner. There were special circumstances in the case that motivated the court’s decision. There is language in the case, however, that suggests that in other circumstances the Statute will apply.

MARIJUANA/POT LAWYER IN BERGEN AND PASSAIC COUNTIES: WORKPLACE CONTROVERSEY RESULTING FROM CALIFORNIA'S MEDICAL MARIJUANA LAWS

ftluciano@aol.com (Blog Author)23137 — Wed, 09 Dec 2009 08:00:00 EST

Although California has one of the oldest medical marijuana laws in the country and its marijuana/pot industry produces 14 billion dollars in revenues, the use of medical marijuana in the workplace is not without complications in that state.

This summer, in a case entitled Ross v. Raging Wire, the Supreme Court of California concluded that an employer could discharge an employee qualified as a patient under its medical marijuana laws because the patient/employee’s urine was positive for marijuana. In that case, the employee/patient suffered from chronic back pain and decided to use marijuana dispensed from a sanctioned facility, instead of some more potent drug like Percocet. When his urine test was positive for marijuana, he was discharged. The case found its way to the Supreme Court to determine whether the employer’s right to terminate an employee was trumped by the state’s Medical Marijuana Law. Unfortunately for the proponents of the law, the employer’s position was sustained by the Supreme Court.

As a result of this decision, there has been a movement to amend the statute to prevent workplace terminations where the employee is a qualified patient through the state’s medical marijuana law.

LEGAL MALPRACTICE LAWYER IN BERGEN AND PASSAIC COUNTIES: LAWYER SCOLDED FOR PAYMENT OF A FACT WITNESS

ftluciano@aol.com (Blog Author)23085 — Tue, 08 Dec 2009 08:00:00 EST

In October 2009, a lawyer from Lakewood obtained an adverse ruling from a federal court judge that barred the testimony of an anticipated witness. In addition, the lawyer was required to pay the cost of investigating and litigating the witness’s recusal. The trial court reserved a decision as to whether there was a need for professional discipline or sanction.

The core of the controversy related to an age-old legal principle that prohibits litigants and lawyers from paying fact witnesses. The case subject of the trial court’s ruling was a breach of contract action. During discovery, the lawyer identified the witness as an expert. The witnesses was deposed and it was learned that the witness contacted the attorney and disclosed helpful information and questioned whether he would be paid as a witness. In order to circumvent this well received principle of law prohiting payment to fact witnesses, the lawyer identified the witness as an expert and paid him more than $4,000 in fees. The trial court concluded that this tactic was ruse. As a result, he sanctioned the lawyer.

MARIJUANA/POT LAWYER: BERGEN AND PASSAIC COUNTIES: THE USE OF A GPS IN INVESTIGATING DRUG RELATED OFFENSES

ftluciano@aol.com (Blog Author)22881 — Fri, 04 Dec 2009 08:00:00 EST

To many, the Orweillian concept of “big brother” is a real and present danger in our country today. A recent decision by the Appellate Division in New Jersey has addressed the use of a global positioning system (GPS), in the prosecution of a drug related offense. In that case, the government’s agent installed a GPA device on a suspect’s motor vehicle, so as to track the suspect’s visit to an apartment that was dealing drugs and drug paraphernalia. The suspect was later indicted.

At trial, the government sought to introduce the results of the GPS device and when the defense objected, the trial judge indicated to the government that an expert witness would be required. The trial judge also issued a protective order that precluded the defendant from examining the device and to determine where it was installed on his vehicle. Thereafter, the government made a piecemeal effort on different dates to establish an appropriate foundation for the GPS. The trial court ultimately ruled that the GPS information was inadmissible and the state finally moved to reconsider that ruling
by offering an expert from the manufacturer. The trial court denied the request.

On appeal, the court affirmed the trial court’s ruling and observed that GPS devices are susceptible to malfunction and, as a result, could not be put into evidence. The court also ruled that the trial court’s decision to bar the state’s belated effort to establish an appropriate foundation was appropriate.

CONSUMER FRAUD LAWYER IN BERGEN AND PASSAIC COUNTIES: THE LONE STAR CONCEPT IN THE ATTORNEY FEE-SHIFTING OPPORTUNITIES IN THE CONSUMER FRAUD ACT

ftluciano@aol.com (Blog Author)22822 — Thu, 03 Dec 2009 08:00:00 EST

New Jersey’s Consumer Fraud Act (CFA) is considered to be one of the strongest consumer protecting statutes in the country. Apart from allowing a successful claimant to obtain three times the actual damage sustained by the merchant’s illicit conduct, it also requires merchants who violate the CFA to pay the successfully claimant’s attorney fees.

In addressing CFA claimant’s request for attorney fees, a trial court is required to begin an analysis of the claim with the so-called lode-star concept which is merely the computation of the number of hours reasonably spent by the successful claimant’s lawyer during the litigation process, multiplied by a reasonable hourly rate. Once that analysis is completed, the court may consider other factors, including: (a) the time spent prosecuting the CFA claim as opposed to various other claims contained in the claimant’s pleading; (b) the novelty of the issue subject of the CFA claim and; (c) whether the claimant’s lawyer has been paid on an hourly basis or a contingent fee basis. Notably, some cases indicate that the attorney fee claim does not have to be proportionate to the amount of the recovery.

MARIJUANA/POT LAWYER IN BERGEN AND PASSAIC COUNTIES: MARIJUANA COLLEGE?

ftluciano@aol.com (Blog Author)22776 — Wed, 02 Dec 2009 08:00:00 EST

With the advent of the Obama administration’s decision not to prosecute users, providers or growers, sanctioned under a state’s medical marijuana law, a cottage industry of marijuana/pot commerce has begun to grow. The most recent and perhaps most ambitious is a school identified as the “Med Grow Cannabis College.” At this “college” the curriculum relates to the history, agriculture, legal and medical issues associated with the Michigan’s new medical marijuana law. The school offers a six week primer on medical marijuana. The tuition is a mere $485.

Under Michigan’s Medical Marijuana Law, qualified patients or “care givers” can grow up to 12 marijuana/pot plants.

MARIJUANA/POT LAWYER IN BERGEN AND PASSIAC COUNTIES: MASSACHUSETTS DECRIMINALIZES SMALL QUANTITIES OF MARIJUANA/POT

ftluciano@aol.com (Blog Author)22435 — Wed, 25 Nov 2009 08:00:00 EST

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.

MARIJUANA/POT LAWYER IN BERGEN AND PASSAIC COUNTIES: RHODE ISLAND, THE POT CAPITAL OF THE U.S.

ftluciano@aol.com (Blog Author)22356 — Tue, 24 Nov 2009 08:00:00 EST

Rhode Island which is the smallest state in the country has recently had its citizen's label the countries biggest consumers of marijuana/pot. Statistics indicate that 16.12% of its population smoke marijuana/pot each month. The second place finisher which was Vermont posted a monthly cannabis consumption rate of 15.75% of the population. New Hamspire and Massachusetts finished in 3rd and 5th place respectively. Notably, Rhode Island took the lead position in cocaine use as well.

MARIJUANA/POT LAWYER IN BERGEN AND PASSAIC: THE FIRST MARIJUANA/POT CAFE IN THE US

ftluciano@aol.com (Blog Author)22141 — Fri, 20 Nov 2009 08:00:00 EST

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.”

MARIJUANA/POT LAWYER IN BERGEN AND PASSAIC: POT IS LEGAL IN BRECKENRIDGE, COLORADO!

ftluciano@aol.com (Blog Author)22030 — Wed, 18 Nov 2009 08:00:00 EST

In a remarkable development, the town of Breckenridge, Colorado, a well known ski destination, recently passed an ordinance that decriminalized the possession of small quantities of marijuana/pot. The ordinance was spear-headed by a popular poll that indicated that 71% of the town's voters would approve the ordinance. Similar measures are underway in Derango and Aspen, which are two other resort towns. While members of the Breckenridge town counsel are adament that the ordinance will not make Breckenridge a "little Amsterdam" one of the biggest novelty sales item in town is a T-Shirt that says, "DUDE, I THINK THIS WHOLE TOWN IS HIGH."

Unfortunately, this rather ambitious effort to leaglize marijuana/pot on a local level overlooks the fact that possession of the substance in any quanity violates state and federal statutes. To think that state and federal law enforcement agents will turn a blind eye to marijuana/pot use in Breckenridge is to blink at reason.

MARIJUANA/POT LAWYER IN BERGEN AND PASSAIC COUNTIES: RACIAL DISCRIMMINATION IN POSSESSION CASES

ftluciano@aol.com (Blog Author)21815 — Mon, 16 Nov 2009 08:00:00 EST

For decades, the federal government allowed a peculiar quirk in its sentencing guidelines which exposed distributors of crack cocaine to harsher sentences than those convicted of selling an equal amount of powder cocaine. Recently, the federal government has abandoned this sentencing scheme because it recognized that minorities have a greater propensity to use crack cocaine. Newly disclosed information suggests that race may be motivating an imbalance in marijuana/pot arrests as well

In 2008, there were almost 850,000 people arrested for marijuana/pot. 80% of those people were charged with possession only. In California, Blacks are three times as likely to be arrested for marijuana/pot related offenses than a white person. In New York City, 86% of everyone charged with a possession of pot/marijuana in 2008 was a Black or Latino.

Clearly, these numbers show a lopsided philosophy of law enforcement. The most disturbing component of this analysis, however, is that federal studies indicate that young white people use marijuana/pot more than Blacks and Latinos.

For more information on the inference of race in drug cases, read my book titled, “The Drug War: The Other Casualties.” It can be downloaded on this website for free.

MARIJUANA/POT LAWYER IN BERGEN AND PASSAIC COUNTIES: INCHING TOWARD LEGALIZATION

ftluciano@aol.com (Blog Author)21710 — Fri, 13 Nov 2009 08:00:00 EST

Recently, the Obama administration declared that it would no longer prosecution patients and providers who are authorized to possess and distribute marijuana under a state’s Medical Marijuana Law. This policy has renewed discussions on the prospects of legalizing marijuana/pot. As explained in a prior blog, the country’s dismal economy may be motivating local and state legislators to move quicker than usual.

In California , a bill have been introduced to present an initiative to the voter to address four separate options relating to the legalization of marijuana/pot. Elsewhere, the governor of New York, Dave Paterson and the Attorney General of Arizona, Terry Gotter have suggested legalizing marijuana/pot for revenue purposes and to curtail the gangs that distribute the substance.

This movement toward legalization is also influenced by what is called the “cultural main streaming of marijuana.” Indeed, recently, the Today’s show presented a piece titled “Stiletto Stoners” which developed the profile of professional women who are now using a joint to relax and not the traditional cocktail.

CRIMINAL LAW IN BERGEN AND PASSAIC COUNTIES: THE SIXTH AMENDMENT AND VIDEO TAPED DEPOSITION IN A CRIMINAL TRIAL

ftluciano@aol.com (Blog Author)21298 — Fri, 06 Nov 2009 08:00:00 EST

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.

MALPRACTICE LAW IN BERGEN AND PASSAIC: EX-PARTE CONFERENCE WITH JUDGES

ftluciano@aol.com (Blog Author)21151 — Wed, 04 Nov 2009 08:00:00 EST

A Mercer County judge was recently reprimanded by the Supreme Court for having an ex-parte conversation with a relative of a criminal defendant, where the judge sought to convince the relative that a plea offered by the government was reasonable and in the defendant’s "best interest."

The defendant, a former police officer who, while serving an eight year term of imprisonment on an unrelated offense, was indicted again for an assortment of theft offenses. The government’s offer sought a guilty plea from the defendant with the sentence to run concurrent with his present term. At a status conference, the judge requested to speak with the defendant’s brother and suggested that the brother "make some sense" to the defendant on the plea offer.

The judge admitted that the conversation occurred and said he was motivated by the emotional impact the case would have on the defendant’s family and especially his teenage daughters.

The Court concluded that the judge’s behavior offended three ethical rules. The first prohibited judges from participating in plea discussions. The second prevented judges from initiating ex-parte communications. The third restrains judges from doing anything that would be prejudicial to the administration of justice.

COMPLEX LITIGATION IN BERGEN AND PASSAIC COUNTIES PEIRCING THE CORPORATE VEIL

ftluciano@aol.com (Blog Author)21075 — Tue, 03 Nov 2009 08:00:00 EST

As explained previously on this blog site, the law will limit the liability of a corporation to its assets. Thus, if creditor obtains a judgment against a corporation for $500,000 and the corporation only owns $200,000 in assets, the creditor cannot look to the assets of the corporation’s shareholders or an inter-related business entity to satisfy the balance of the debt. There are times, however, when the courts will pierce the corporate veil. There are a number of factors that a court will look to for purposes of addressing a request of this nature.

The first is to determine the extent to which the shareholder or related entity controlled the corporation. In this regard, the control of the corporation can not be so dominant as to deprive the corporation of its separate existence.

The second is whether the corporate form is being used to create a fraud or an injustice. In short, the corporation should not be allowed to use its form as a shield to circumvent its responsibility under the law.

Finally, there must be a causal relationship between the two factors referenced above and the loss sustained by the claimant who seeks to pierce the corporate veil.

CRIMINAL LAW IN BERGEN AND PASSAIC COUNTIES: THE AFFECT OF A CONDITIONAL DISCHARGE ON AN APPLICATION TO EXPUNGE

ftluciano@aol.com (Blog Author)20960 — Mon, 02 Nov 2009 08:00:00 EST

The New Jersey Expungement Statute provides that a petition for expungement should be denied if the applicant “has prior to or subsequent to said conviction been granted the dismissal of criminal charges following completion of a supervisory treatment or other diversion program.”

The Appellate Division has concluded that thus disqualifier only applies to instances when the conditional discharge was for a criminal offense and not a disorderly persons offense. In that case, the court looked to the language of the statute and noted that the statute consistently distinguished disorderly persons, petty disorderly persons, and criminal offenses when discussing expungement options, but, only identified criminal offenses when discussing the diversion program disqualifier. The Court further noted that precedent showed that a “disorderly persons is deemed to be a petty offense, rather than a crime within the provision of our State Constitution.” Therefore, the Court concluded that only a diversion program for a criminal offense, not a disorderly person offense could act as a bar to an expungement request.

COMPLEX CIVIL LITIGATION IN BERGEN AND PASSAIC COUNTIES: THE LIABIILITY OF A PRINCIPAL FOR THE FRAUDULENT CONDUCT OF ITS AGENT

ftluciano@aol.com (Blog Author)20825 — Fri, 30 Oct 2009 08:00:00 EST

Generally, the law will impute to a principal the fraudulent conduct of its agent, where the agent is acting with the scope of his authority and that is so, even if the conduct is unauthorized or fails to provide a benefit to the principal.

This rule is bottomed upon two practical considerations. The first is that the principal made the decision to place the agent in a position that allowed the fraud to have occurred. The second is the so-called “deep pockets” theory of liability which is rooted in the law’s recognition that a principal is more capable than an agent to have the resources to pay the claims of people who have sustained a loss because of civil wrong.

COMPLEX LITIGATION IN BERGEN AND PASSAIC COUNTIES: THE LIMITED LIABILITY OF THE CORPORATION

ftluciano@aol.com (Blog Author)20754 — Thu, 29 Oct 2009 08:00:00 EST

A corporation is an autonomous entity that exist separate and apart from its shareholders. As a result, a claimant who obtains a judgment against a corporation cannot look to the assets of the shareholders to satisfy the debt created by the judgment. This principle of law is equally applicable to parent corporation where one of its subdivision became a judgment debtor. In short, the liability of a corporation is limited to its assets. This limited liability concept is the principle reason why may people decide to conduct in a corporate form.

There are times, however, when the courts will disregard this limited liability concept and “pierce the corporate veil” in order to allow a creditor to attach the assets of an individual shareholder or a inter-related business entity to satisfy a corporate liability. A court will allow this unusable remedy where a corporation is used to create a fraud, manipulate an injustice or to otherwise pervert the law. Of course, the proponent of a request to pierce the corporate veil has the responsibility to prove a rather complex collection of facts in order to succeed.

CONSUMER FRAUD LAW IN BERGEN AND PASSIAC COUNTIES: DOES THE CFA APPLY TO COMPLEX TRANSACTIONS?

ftluciano@aol.com (Blog Author)20354 — Wed, 21 Oct 2009 08:00:00 EST

New Jersey’s Consumer Fraud Act (CFA) is considered one of the toughest in the country. The CFA applies to the sale or advertisement of any merchandise or real estate. The term merchandise is defined to include objects, goods, commodities, services or “anything offered directly or indirectly to the public for sale.”

At various times, however, the courts in this state have determined that the CFA does not apply to transactions that are complex in nature. Thus, it has been determined that the CFA will not apply to sophisticated investment plans between financial advisors and investors who were physicians or a tax shelter arrangement where the investors are a business entity and its owners.

The general basis for these rulings is grounded upon the recognition that the CFA should apply to products or services that are sold to the general public and where the transaction is not terribly complex. These rulings also recognize the need to place reasonable restraints on the applicant of the CFA in the marketplace

DRUNK DRIVING LAW IN BERGEN AND PASSAIC COUNTIES: THE INFLUENCE OF AN UNCOUNSELLED PRIOR CONVICTION ON SENTENCING

ftluciano@aol.com (Blog Author)20136 — Fri, 16 Oct 2009 08:00:00 EST

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.

CRIMINAL LAW IN BERGEN AND PASSAIC COUNTIES: THUMBS UP GESTURE BY A WITNESS TRIGGERS RICO CONSPIRACY CONVICTION

ftluciano@aol.com (Blog Author)19708 — Thu, 08 Oct 2009 08:00:00 EST

New Jersey’s Racketeering Influence Corruption Organization Statute (RICO) has been broadly construed in favor of the government since its inception. A recent case defines the court’s commitment to apply the statute expansively.

The defendant in the case was a reputed member of the Columbo Crime Family. As a result of his alleged criminal activities, he was indicted by both the federal and state governments for, among other things, the murder of at least two individuals. At the state trial, one of the defendant’s confederates, who had previously entered into a plea arrangement to cooperate with the government against the defendant, refused to testify. When the witness left the witness stand, he gave the defendant a thumbs up sign, along with other encouraging gesticulations. The trial resulted in a hung jury.

Thereafter, the government obtained a superceding indictment against the defendant, which included a RICO conspiracy theory. The defendant sought to obtain a dismissal of the indictment contending that no criminal activity associated with the conspiracy occurred within the five years of the indictment and, as a result, the statute of limitations barred the conspiracy charge. The trial judge rejected the defendant’s argument and the case found its way to the Appellate Division. There, the court observed that the witness’s contemptuous silence in the face of a grant of immunity, along with the witness’s word and gestures, including the thumbs up sign was a continuing effort to conceal the conspiracy and thus, was a sufficient overt act under the RICO statute.

DRUNK DRIVING (DWI/DUI LAW) IN BERGEN AND PASSAIC COUNTIES: THE APPELLATE DIVISION ORDERS THE TURNOVER OF ALCOTESTS RAW DATA

ftluciano@aol.com (Blog Author)19676 — Wed, 07 Oct 2009 08:00:00 EST

Although the Supreme Court ruled in State v. Chun, that the Alcotest was a reliable instrument to determine a defendant's blood alcohol concentration (BAC) in Drunk Driving (DWI/DUI) cases, the defense bar believes that the decision was in error and, as a result, a number of its members have made a diligent effort to collect the raw data associated with specific applications of the Alcotests in various municipalities. Thus far, courts in Morris, Somerset and Middlesex Counties have authorized the turnover of raw data information associated with the Alcotest on the basis of a defendant's discovery motion.

Recently, the Appellate Division reversed the decision of a trial judge from Atlantic County who prevented a defendant from obtaining specific information from the Alcotest machine used in his drunk driving (DWI/DUI) case. The Appellate Division's decision, which was only subject of an order and not a written opinion made reference to a memorandum authored by the Division of Criminal Justice's Director that authorized the release of stored alcotests data when requested in the discovery with a drunk driving (DWI/DUI) case.

CRIMINAL LAW IN BERGEN AND PASSAIC COUNTIES: BAIL FORFEITURE WHERE THE DEFENDANT IS INCARCERATED OUT-OF-STATE

ftluciano@aol.com (Blog Author)19439 — Fri, 02 Oct 2009 08:00:00 EST

Over twenty years ago, the Appellate Division in New Jersey concluded that the government was not entitled to a bail forfeiture where the defendant’s non-appearance was grounded upon a subsequent lock-up in another county within the state. The philosophical underpinning of that case was that the government controlled the ability of the defendant to appear in the county complaining about non-appearance and, therefore, a bail forfeiture was not appropriate. In that opinion, the court also observed, in passing, that the same rule would not apply if the defendant was incarcerated out-of-state because a foreign state did not have an absolute and unqualified responsibility to return the defendant to New Jersey and, as a result bail could be forfeited.

Twenty years later, another Appellate Division panel revisited the issue and concluded that if a defendant was a fugitive in the state of New Jersey because of an incarceration in another state a full or partial remittance of bail may be available to the surety/bail bonds company. The core of the court’s decision was the Interstate Agreement on Detainers (IAD), which has been adopted by the Federal government, the District of Columbia and all states save, Mississippi and Lousianna. As a result of the result IAD, the court concluded that under most circumstances, a New Jersey defendant detained in out-of-state prison would be extradited back to New Jersey to answer pending charges.

In closing its opinion, the court also noted that it was “troubled” by the government’s failure to promptly notify the surety /bail bonds company of the defendant’s out-of-state incarceration. As a result, the surety/bail bonds company was required to spend unnecessary money in its recapture effort. The court also observed that the failure to provide notice of the defendant’s arrest also deprived the surety/bail bonds company of an early opportunity to avoid bail forfeiture, which is a factor that can influence the amount of the remittance to be made.

If you need any assistance in placing a bail bond, I would refer you to Rob Lapinski, one of the principals of Dollar Bail Bond located at 10 East Moonachie Road, Hackensack, New Jersey 07601. Rob is earnest and honest. You can reach him at (201)-373-1400 or visit his website at www.dollarbail.com.

CRIMINAL LAW IN BERGEN AND PASSAIC COUNTIES: THE COMPULSORY JOINDER RULE

ftluciano@aol.com (Blog Author)19322 — Thu, 01 Oct 2009 08:00:00 EST

Almost 25 years ago, New Jersey Supreme Court adopted the Compulsory Joinder Rule. This judicially created rule was later incorporated into New Jersey’s Criminal Code. Stated simply, all known offenses evolving from the same criminal episode, must be joined in one trial and, failing that subsequent prosecutions will be barred.

In August 2009, the Appellate Division applied the principle in a case involving a defendant who was charged with multiple offenses relating to the use and possession of a weapon. The defendant was convicted of a second degree crime involving the possession of a weapon by a person not authorized to have one. After the verdict, it was learned that the defendant’s perceived disqualification for the possessory offense was not identified in the statute, as a result the trial court was required to enter an acquittal, despite the jury’s verdict. Thereafter, the government and the defendant’s attorney crafted a plea arrangement where the defendant agree to plea to a third degree offense that was previously dismissed by the government from the indictment that produced the weapons conviction. As a result of the plea agreement, the defendant was sentenced to a four year term of imprisonment with an 18 month parole disqualifier.

The defendant later appealed and claimed that his trial attorney failed to provide him with effective assistance of counsel because the lawyer did not tell him that, among other things, the Compulsory Joinder Rule would have barred the crime subject of his plea agreement. His appeal was successful

CRIMINAL LAW IN BERGEN AND PASSIAC COUNTIES: EXPUNGEMENT OF THE RECORDS OF A YOUTHFUL DRUG OFFENDER

ftluciano@aol.com (Blog Author)19207 — Wed, 30 Sep 2009 08:00:00 EST

Youthful drug offenders in New Jersey may be able to obtain an expungement of arrest or conviction record within one year after the arrest, if it did not result in a conviction or if a conviction occurred within one year from the date of the completion of the sentence, including probationary terms and the payment of all the fines. Otherwise, the wait to obtain an expungement may be as long as seven years.

Expungement for youthful offenders within this one year term is applicable to possession of a controlled dangerous substance, possession of paraphernalia, distribution or possession with the intent to distribute 25 grams of marijuana or less and distribution or possession with the intent to distribute 5 grams of hash or less.

An expedited expungement process for a youthful drug offender is not available if: (a) the youthful offender has violated the terms of probation or parole, subject of the conviction; (b) there is a subsequent conviction of a crime; (c) there has been a prior admission into a supervisory or diversionary program (PTI); (d) there is pending litigation against the government with respect to the event subject of the crime involved with the expungement; (e) there are other pending criminal charges; and (f) the court determines that the need to maintain the public nature of the records exceed the need for expungement.

LEGAL MALPRACTICE LAW IN BERGEN AND PASSAIC COUNTIES: JUDGE DISCIPLINED FOR SARCASTIC COMMENTS AT CONTEMPT HEARING

ftluciano@aol.com (Blog Author)19154 — Tue, 29 Sep 2009 08:00:00 EST

A municipal court judge, who sits in Keyport, Perth Amboy and Woodbridge was recently disciplined by the Supreme Court for his conduct at a video taped plea hearing with an incarcerated defendant who was charged with non-moving motor vehicle offenses.

When the municipal judge abruptly terminated a discussion with the defendant about the reasons associated with the defendant’s current incarceration, the defendant gave the judge the finger, a “raspberry” and appeared to spit as he left the video area. The judge required the defendant to return, held him in contempt and initially imposed a 30 day jail term. When the defendant retorted, the judge upped the jail time to 45 days. The defendant’s response to this increase in jail time caused the judge to move the penalty to 60 days and, when the defendant said “no, give me 70," the judge obliged and increased the term to 75 days. Ultimately, the judge imposed 180 days of imprisonment.

A committee that monitors judicial conduct found that the judge’s behavior was intemperate and inappropriate. It also observed that the sentencing process was more like an action than a judicial proceeding. The Supreme Court endorsed the committees findings and reprimanded the judge.

CRIMINAL LAW IN BERGEN AND PASSAIC COUNTIES: MURDER CASE REVERSED BECAUSE GOVERNMENT WITHHOLDS CRITICAL DISCOVERY

ftluciano@aol.com (Blog Author)19067 — Mon, 28 Sep 2009 08:00:00 EST

Twenty-Five years ago, an individual was shot in Atlantic City. In 2004, the accused was finally brought to trial. That trial resulted in a hung jury. The second trial resulted in a mistrial that occurred when the government failed to disclose that one of its witnesses was a paid informer. In the third trial, the defendant was convicted. The defendant was sentenced to 65 years in prison. The case was most notably for the government’s use of a variety of unsavory witnesses, including one or two who recanted prior testimony that the defendant was the murderer.

Prior to the first trial, the government moved the trial court to issue a protective order preventing the defendant from obtaining access to a number of documents in its file. The government’s position was that it did not intend to use the witnesses identified in these documents and that these witnesses needed to be protected from the defendant. The application was granted. The case proceeded to trial and, as explained, the defendant was convicted.

This month, an appellate court in New Jersey reversed that conviction on a variety of grounds. The most important of which was the trial court’s decision to prohibit the turn-over of the documents subject of the protective order. In its opinion, the court observed that there were “numerous pages” of relevant information that could have assisted the defendant in impeaching the credibility of various witnesses. The court also said that some of these documents could have helped defendant develop his claim that the government’s delay in bringing this accusation to trial was a violation of a Speedy Trial Rights.

LEGAL MALPRACTICE BERGEN AND PASSAIC COUNTIES: CRIMINAL CONVICTION REVERSED BECAUSE OF DEFENDANT'S CONCURRENT REPRESENTATION OF GOVERNMENT'S COMPLAINING WITNESS

ftluciano@aol.com (Blog Author)18950 — Fri, 25 Sep 2009 08:00:00 EST

It is academic to say that an attorney cannot represent two clients at the same time, if that representation will adversely affect either client. The basis for the rule is simple. It relates to an attorney’s unyielding responsibility to provide the client with complete and undivided loyalty. It has been said that a conflict of interest resulting from concurrent representation of clients with antagonists interests constitutes a breach of professional ethics and nurtures an utter disrespect for the integrity of the judicial process.

The influence of the rule that prohibits concurrent representation where the representation will limit the lawyer’s loyalty is especially compelling in the context of a criminal prosecution because of a defendant’s Sixth Amendment right to counsel. This month, an appellate division panel reversed the conviction of a defendant and remanded, the case back to the trial court to conduct a plenary hearing, to determine whether the defendant’s attorney, direct or indirect, representing of three of the government’s witnesses, one of whom recanted his testimony, was a violation of the attorney’s responsibility to the defendant.

EXPUNGEMENT LAW IN BERGEN AND PASSAIC COUNTIES: WHEN EXPUNGED RECORDS CAN BE DISCLOSED

ftluciano@aol.com (Blog Author)18883 — Thu, 24 Sep 2009 08:00:00 EST

Despite common thoughts to the contrary, once a person obtains an expungement of a criminal conviction that conviction is not entirely removed from all of the government’s records. Indeed, under certain circumstances, a record of an expungement can be disclosed to others.

Expunged records can be used for a variety of purposes, including: (a) sentencing in a subsequent offense; (b) assessing bail in a subsequent offense; (c) in a parole hearing; (d) the department of corrections for purposes of assessing the defendant’s classification or assignment within a prison; and (e) assessing an application under a supervisory treatment or diversion program. In some cases, an expunged record can be unsealed to assist in impeaching the credibility of a witness. In other cases, the courts have allowed disclosure of expunged information where a person is being sued for malicious prosecution on a claim relating to an offense that was expunged or in a libel case where the defamatory declaration pertains to a criminal offenses that was expunged. In many of these cases, the person seeking disclosure will be required to petition the court and show that there is good cause and compelling reasons for disclosure of the information.

A person who discloses to another the existence of an arrest or conviction that has been expunged or sealed, is guilty of a disorderly persons offense that can require imprisonment of up to six months and $1,000 fine.

CRIMINAL LAW IN BERGEN AND PASSAIC COUNTIES: THE PREJUDICIAL EFFECT OF A DEFENDANT OR WITNESS WHO IS SHACKLED OR PRESENTED AT TRIAL IN PRISON GARB

ftluciano@aol.com (Blog Author)18826 — Wed, 23 Sep 2009 08:00:00 EST

It has long been the law in this state that a trial judge should not allow either a defendant or his/her witnesses to appear at trial in prison garb or in restraints. That is so because the appearance of a defendant or his witness in prison clothes or restraints can produce a real and present danger of unfair prejudice. In those instances where the government insists on producing a defendant or a defense witness in restraints, it is the responsibility of the trial court to determine whether those restraints are necessary in order to keep the courtroom secure. If the decision is made to require the defendant or witness to testify in restraints, the court must give a jury instruction “in the clearest terms that they should give such restraint no consideration whatsoever in assessing the proofs and determining guilt.”

This year, the New Jersey Supreme Court applied this principle to the government’s witness. In that case, the defendant objected to a government’s witness testifying in shackles and in prison garb. Although the government argued that the witnesses’ appearance in prison garb and shackles assisted the principal defense theme in the defendant’s case, the Supreme Court rejected the argument and concluded that there is no reason to differentiate between the prejudice caused by the presence of shackles on a defense witness and that of a prosecution witness. Although this case only related to restraints, the court cautioned, however, that a full-blown evidential hearing was not necessary and, that in order to determine whether the court room was secure, an informal hearing would suffice.

CRIMINAL LAW IN BERGEN AND PASSAIC COUNTIES: MISSING DNA EVIDENCE

ftluciano@aol.com (Blog Author)18730 — Mon, 21 Sep 2009 08:00:00 EST

In 1985, a defendant in Essex County was convicted of rape and sentenced to a 50 year term of imprisonment. While this case was on appeal, the use of DNA evidence first appeared in a criminal prosecution. Resultingly, the defendant requested the government to produce the victim’s bedding and the rape kit used by the government. At the plenary hearing that followed, the prosecutor told the trial judge that the evidence had been removed from the evidence room and its whereabouts were unknown. Resultingly, the trial court denied as moot the defendant’s request for the production of the evidence.

Almost 20 years later and armed with a new lawyer, the defendant returned to the courthouse. This time, the trial judge instructed the Essex County Prosecutor’s Office to conduct a more through investigation and search. Apparently, one of the arguments that convinced the judge to require a more integrated investigation was the revelation that the prosecutor’s office maintained a “legacy vault” that contained evidence from cases that occurred in the 1980's . The vault could not be opened because no one knew the combination of the door. Recently, the vault was open and it was found to contain some evidence from the defendant’s original case, but not the evidence requested for the DNA testing.

CRIMINAL LAW IN BERGEN AND PASSAIC COUNTIES: AMENDMENT TO STANDARD PLEA FORM

ftluciano@aol.com (Blog Author)18519 — Thu, 17 Sep 2009 08:00:00 EST

Many years ago, the Administrative Office of the Court prepared a standardized form to be used in all cases where a defendant pled guilty to a crime. The purpose of the form was to advise the defendant of the consequences of his/her decision to plea guilty, so as to insure that the plea was grounded upon a knowing and intelligent waiver of certain basic rights provided to all people accused of a crime. By necessary implication, the standardized plea form, which was signed by the defendant, prevented the prospects of having a defendant move to vacate a guilty plea grounded upon a claim that the defendant did not truly understand the implication of the guilty plea.

A few months ago, the New Jersey Supreme Court allowed a defendant to vacate a guilty plea because his defense attorney did not advise him that the plea would trigger his deportation. Noteably, the plea form signed by the defendant in this case required the defendant to acknowlege that the guilty plea "may" cause deportation. Recently, the court revised the standard plea form to recite language that aliens who are convicted of certain "aggravated felonies" will be deported if they plea guilty.

DRUG LAW IN BERGEN AND PASSAIC COUNTIES: THE SIXTH AMENDMENT RIGHT TO CROSS WITNESSES AND THE HEARSAY RULE

ftluciano@aol.com (Blog Author)18338 — Mon, 14 Sep 2009 08:00:00 EST

This summer, the United States Supreme Court addressed an issue relating to the government’s use of a lab certificate in a drug prosecution where the certification identified the weight of the substance and its type, viz., cocaine. The defendant objected to the admission of the certification, claiming that it would offend his Sixth Amendment right to confront and cross-examine witnesses. The objection was overruled at the trial level. The trial court concluded that the certification was an admissible form of hearsay under the court’s rules of evidence. The case ultimately found its way to the United States Supreme Court.

In reviewing the trial court’s ruling, the Supreme Court looked to the case of Crawford v. Washington, which was decided by the court approximately five years ago and concluded that a lab certification was testimonial in nature and that the author of the certification was a witness for purposes of Sixth Amendment analysis. Resultantly, the court reversed the defendant’s conviction. In rendering its decision, however, the court noted that if the author of the certification was unavailable to testify, and the petitioner had a prior opportunity to cross-examine the author, the principles of the Sixth Amendment may have been satisfied.

CRIMINAL LAW IN BERGEN AND PASSAIC COUNTIES: SUPPRESSION OF INTERCEPTION PHONE CONVERSATION

ftluciano@aol.com (Blog Author)18119 — Wed, 09 Sep 2009 08:00:00 EST

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 inadverent. 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.

LEGAL MALPRACTICE IN BERGEN AND PASSIAC COUNTIES: ATTORNEY RETAINER AGREEMENTS

ftluciano@aol.com (Blog Author)18075 — Tue, 08 Sep 2009 08:00:00 EST

It is well recognized that retainer agreements between an attorney and client are enforceable provided that the agreement satisfies both the general requirements for a contract and certain ethical principles that are specific to the legal profession. Any retainer agreement that violates the rules of professional conduct may be declared unenforceable. In analyzing an attorney’s retainer agreement, the courts have consistently recognized that there is a fiduciary duty owed by the attorney to the client and to the extend that there are any contests relating to the interpretation of the agreement those contests will be decided against the attorney.

Criminal in Bergen and Passaic Counties: A Juvenile's Absolute Right to Counsel After a Judically Approved Arrest Warrant has Issued

ftluciano@aol.com (Blog Author)17858 — Wed, 02 Sep 2009 08:00:00 EST

It is well settled in this state that when a specific indictment issues the defendant has an absolute right to an attorney which can not be waived absent advise from an attorney.

In July 2009, New Jersey’s Supreme Court applied this important principle of law in a juvenile case where a youthful offender was arrested under a judicially approved arrest warrant. To the court’s mind, this arrest was a “critical stage” of the criminal process and to that extend, an attorney was required during the juvenile’s interrogation. In the case subject of the Court’s ruling, a juvenile was arrested and while in the custody, he admitted that he committed a number of serious sexual offenses against other juveniles after waiving his Miranda Rights. The court ruled that despite the juvenile’s waiver of his Miranda Rights, the waiver could not be effective without the prior approval of the juvenile’s counsel.

Drunk Driving (DWI/DUI) Law in Bergen and Passaic Counties: Arresting Police Officers Do Not Have to Translate So-Called Refusal Warnings In Drunk Driving Cases (DWI/DUI)

ftluciano@aol.com (Blog Author)17825 — Tue, 01 Sep 2009 08:00:00 EST

A motorist who fails to provide a breath sample under circumstances where the government believes that the motorist is operating a vehicle under the influence of alcohol or some other substance defined by the statute will be convicted under New Jersey’s so-called refusal statute. The cases interpreting New Jersey’s refusal statute have consistently concluded that a defendant’s consent must be unqualified, unconditional and unequivocal. For that reason, the government is required to read to a defendant an elaborate set of instructions to insure that a defendant has no questions about his/her responsibility to provide breath samples.

In the summer of 2009, an appellate panel concluded that a motorist who spoke only Spanish and could not understand English did not have a right to have the standard breath test instructions translated from English before he was required to participate in a breath test. The motorist raised a number of arguments on appeal. Some of them were rooted in principles of constitutional law. Each of these arguments were rejected by the court, the court did recommend, however, that the Vehicle Commission consider translating the statements into Spanish, as well as other foreign languages and to instruct investigating officers to read these new forms where appropriate..

COMPLEX LITIGATION IN BERGEN AND PASSAIC COUNTIES: DUE PROCESS AND THE NEUTRALITY OF JUDGES

ftluciano@aol.com (Blog Author)17265 — Fri, 21 Aug 2009 08:00:00 EST

COMPLEX LITIGATION IN BERGEN AND PASSAIC COUNTIES:

DUE PROCESS AND THE NEUTRALITY OF JUDGES

The strength of the American Justice System rises and falls on the integrity of its judges. In a recent decision by the United States Supreme Court, the soft underbelly of this concept has been exposed.

In August 2002, a jury in West Virginia rendered a multi- million dollar verdict against a coal company for fraud and tortuous interference with business opportunity. After the verdict, but prior to the appeal, the defendant coal company's CEO donated 3 million dollars in campaign contributions to an attorney who was running for a seat on West Virginia's Supreme Court. Ultimately, the lawyer was appointed to the high court.

By the time the case reached the West Virginia Supreme Court, the favored lawyer now Justice, voted in favor of entertaining the defendant, coal company's appeal and ultimately the jury's verdict was reversed. The case found its way to the United States Supreme Court who reversed this decision citing federal due process concerns. Specifically, the court concluded that the defendant coal company's "significant and disproportionate influence" in placing the favored lawyer in a position of responsibility on the West Virginia Supreme Court was a violation of the due process clause.

LEGAL MALPRACTICE LAW IN BERGEN AND PASSAIC COUNTIES: EXCESSIVE TRIAL FEES AND CONTINGENT FEE RETAINER AGREEMENTS

ftluciano@aol.com (Blog Author)17221 — Thu, 20 Aug 2009 08:00:00 EST

LEGAL MALPRACTICE LAW IN
BERGEN AND PASSAIC COUNTIES: EXCESSIVE TRIAL FEES
AND CONTINGENT FEE RETAINER AGREEMENTS

An appellate panel has recently addressed the claims of a medical malpractice plaintiff that their trial lawyer's out-of-pocket expenses were excessive and the lawyer's commitment to pay expert witness fees unauthorized. The case returned a $1,100,000.00 settlement.

One of the plaintiffs in the case was an attorney who engaged the law firm under a retainer agreement that provided the law firm with "the exclusive right to take all legal steps to enforce the said claim either by way of suit of settlement." Prior to trial, the plaintiffs' settlement demand was $1,500,000.00 When the offer was rejected, plaintiffs' attorney began to prepare for trial and orally committed to pay two medical experts a $25,000 non-refundable fee for reserving their time to attend trial. In addition, plaintiff's attorney incurred approximately $1,500 to produce various pieces of demonstrative evidence for use at trial.

In addressing the plaintiffs' contentions, the court observed that the language in the retainer agreement created an agency relationship that authorized the law firm to engage expert witnesses without prior approval. The court also observed that plaintiffs had not produced any evidence that the expert witness fees or are the cost for preparing the trial exhibits were excessive.

CRIMINAL LAW IN BERGEN AND PASSAIC COUNTIES: DIRTY JUDGES PLEA DEAL DITCHED BY FEDERAL COURT

ftluciano@aol.com (Blog Author)17114 — Wed, 19 Aug 2009 08:00:00 EST

Awhile ago, I posted a blog that related to two judges in Pennsylvania who concocted a 2.6 million dollar kick-back scheme to send juvenile offenders to a private detention institutions for “finder’s fees.” In February of this year, these two miscreants plead guilty to federal wire fraud on income tax fraud offenses that expose them to an 87 month term of imprisonment. Recently a federal judge rejected the plea agreement because he felt that the defendants had obstructed justice during exchange of information required by the government’s pre-sentence investigation. In both instances the defendants refused to fess up to their complicity in the criminal enterprise. They now face a maximum penalty of 25 years incarceration and a fine of up $25,000.

CONSTRUCTION LAW IN BERGEN AND PASSAIC COUNTIES: RESIDENTIAL CONSTRUCTION AND THEIR SPECIAL RULES

ftluciano@aol.com (Blog Author)17077 — Tue, 18 Aug 2009 08:00:00 EST

CONSTRUCTION LAW IN BERGEN AND PASSAIC COUNTIES:
RESIDENTIAL CONSTRUCTION AND THEIR SPECIAL RULES

New Jersey Construction Lien Law (Act) has established special rules for filing construction liens on residential property. The law requires these rules to be strictly enforced.

The first step in the process requires the lien claimant to file a Notice of Unpaid Balance (NUB). A NUB must be served on the property owner. Contemporaneous with the filing of the NUB, the lien claimant must file an arbitration demand with the American Arbitration Association. The issues to be decided by the arbitrator are whether: (1) the NUB was effectively filed and served; (2) the lien and the amount of the lien is valid; and, (3) there are any set-offs and if so, the amount of set-offs. The arbitrator will also allocate the cost of the arbitration process to the parties.

The arbitrator must render a decision within 30 days after the application for arbitration is filed. If a decision is rendered in favor of the lien claimant, the lien claimant will have 10 days to file the lien. If the lien claimant fails to file within these time constraints, the lien will be invalid.

As explained in other blog postings, the lien should be filed within 90 days after the work, material or equipment is last rendered or produced. Consequently, the NUB and demand for arbitration should be filed at least 50 days after the work, materials or equipment is last provided.

COMPLEX LITIGATION LAW IN BERGEN AND PASSAIC COUNTIES: EXCESSIVE VERDICTS IN PERSONAL INJURY CLAIMS

ftluciano@aol.com (Blog Author)17028 — Mon, 17 Aug 2009 08:00:00 EST

COMPLEX LITIGATION LAW IN BERGEN AND PASSAIC COUNTIES:
EXCESSIVE VERDICTS IN PERSONAL INJURY CLAIMS

One of the most sacred components of the Anglo-American Justice System is the right to a jury trial, which is a constitutionally protected right. Historically, the courts have maintained great deference to a jury verdict.

In a recent medical malpractice case that produced a 50 million dollar verdict in favor of the plaintiffs, the New Jersey Supreme Court revisited the principles of law that control a trial court's analysis of determining whether a verdict is excessive. Specifically, the court observed that where trial court can ordinarily allow its "feel of the case" in personal injury claims to determine whether the jury's verdict was influenced by improper motive, where the verdict is of such magnitude as to be "historic", the court must conduct a careful and searching review to make sure that the parties were justly treated by the jury.

In determining that the verdict was excessive in the case subject of its review, the Court observed that the 50 million dollar verdict succeeded even the plaintiff's counsel suggestion during closing arguments.

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

ftluciano@aol.com (Blog Author)16782 — Wed, 12 Aug 2009 08:00:00 EST

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."

CONSTRUCTION LAW IN BERGEN AND PASSAIC COUNTIES: INOTICE RESPONSIBILITY UNDER NEW JERSEY'S CONSTRUCTION LIEN LAW

ftluciano@aol.com (Blog Author)16488 — Thu, 06 Aug 2009 08:00:00 EST

CONSTRUCTION LAW IN BERGEN AND PASSAIC COUNTIES:
NOTICE RESPONSIBILITY UNDER
NEW JERSEY'S CONSTRUCTION LIEN LAW

After a construction lien has been filed under New Jersey's Construction Lien Law (Act), the lien claimant must serve a copy of the lien on the person or entity that owns the land as well as certain others. Service of the construction lien must be effectuated ten (10) days after the lien has filed and it must be made in person, by registered mail or certified mail. Improper service can render the construction lien unenforceable. If the construction lien is served late, it may not be invalidated unless the other party can show "material prejudice".

Once a landowner has received a copy of the construction lien, the contractor can be required to provide a writing that identifies other potential construction lien claimants. A lien claimant who has received a request of this nature, must respond in writing within ten (10) days of the demand. This provision of the Act allows a landowner to maintain vigilance as to whether other service or material providers have been paid. A lien claimant's failure to provide complete list can expose the claimant to various sanctions including, the payment of attorney fees and other costs.

CRIMINAL LAW IN BERGEN AND PASSAIC COUNTIES: INADMISSIBLE HEARSAY

ftluciano@aol.com (Blog Author)16376 — Tue, 04 Aug 2009 08:00:00 EST

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.

CONSTRUCTIONI LAW IN BERGEN AND PASSAIC COUNTIES: NEW JERSEY'S CONSTRUCTION LAW'S FILING RESPONSIBILITIES AND POTENTIAL SANCTIONS

ftluciano@aol.com (Blog Author)16127 — Thu, 30 Jul 2009 08:00:00 EST

CONSTRUCTION LAW IN BERGEN AND PASSAIC COUNTIES:
NEW JERSEY'S CONSTRUCTION LIEN LAW'S
FILING RESPONSIBILITIES AND POTENTIAL SANCTIONS

If a lien claimant is interested in filing a construction lien under New Jersey's Construction Lien Law (Act), the Act must be followed carefully. The specific form of the lien is literally attached to the Act. That form should be used without material deviation.

The amount of the lien is limited to the unpaid balance of the contract price for the work, services or materials. The lien must be based on a legitimate factual basis and the amount can not be willfully overstated. Although the lien may be amended from time-to-time in a form that is also specifically identified in the Act, all of the conditions of the Act must be again satisfied including, certain notice responsibilities which will be addressed in a future blog.

The construction lien must be filed within ninety (90) days after the work or materials subject of the contract were last provided. Services of warranty work does not extend the time. This deadline can not be extended. It should be watched closely.

If a lien claimant files a construction lien improperly under the Act, the claimant will sustain serious sanctions.

Those sanctions are: (1) loss of the right to file a lien subject of the defective construction lien; (2) litigation costs that may result from the defective lien, including, attorney fees; and, (3) damages that interested parties may sustain as a result of the defective construction lien.

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

ftluciano@aol.com (Blog Author)16043 — Wed, 29 Jul 2009 08:00:00 EST

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.

CRIMINAL LAW IN BERGEN AND PASSAIC COUNTIES: HABEAS CORPUS

ftluciano@aol.com (Blog Author)15882 — Mon, 27 Jul 2009 08:00:00 EST

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 innocense 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.

CRIMINAL LAW IN BERGEN AND PASSAIC COUNTIES: RIGHT TO COUNSEL

ftluciano@aol.com (Blog Author)15788 — Fri, 24 Jul 2009 08:00:00 EST

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.

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

ftluciano@aol.com (Blog Author)15737 — Thu, 23 Jul 2009 08:00:00 EST

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.

CONSTRUCTION LAW IN BERGEN AND PASSAIC COUNTIES: THE WRITING REQUIREMENT UNDER NEW JERSEY'S CONSTRUCTION LIEN LAW

ftluciano@aol.com (Blog Author)15658 — Wed, 22 Jul 2009 08:00:00 EST

CONSTRUCTION LAW IN BERGEN AND PASSAIC COUNTIES:
THE WRITING REQUIREMENT UNDER
NEW JERSEY'S CONSTRUCTION LIEN LAW

In designing the terms of New Jersey's Construction Lien Law (Act), the Legislators recognized that a construction lien be filed by a contractor, subcontractor or material supplier could have an adverse affect on the ownership of real property. They also recognized that, historically, a great deal of time, money and effort had been spent in litigating various issues associated with construction liens.

One of the most important aspects of the Act requires the existence of a written contract.(Writing Requirement). Absent a written contract that comports with the terms of the Act, the lien claimant may not file a construction lien. If one is filed without satisfying the Writing Requirement, the lien claimant will suffer serious consequences.

The Writing Requirement was implemented to provide a solid factual basis to identify the various parties' rights and responsibilities and thus avoid the unnecessary legal costs and expense associated with enforcement. The Writing Requirement also allows other people (i.e. prospective buyers, lenders, etc.) involved with construction projects the opportunity to determine the merits of a construction lien.

The Act does not require a well integrated writing to form a contract. A collection of writings defining the terms of the arrangement will suffice. There is a specific provision in the Act that will allow suppliers who provide materials to a job site to satisfy the Writing Requirement with a delivery slip. The delivery slip, however, must be signed by an authorized agent of the property owner, the contractor, a subcontractor or someone else that has apparent authority to acknowledge delivery.

CONSTRUCTION LAW IN BERGEN AND PASSAIC COUNTIES: INTRODUCTION TO NEW JERSEY'S CONSTRUCTION LIEN LAW

ftluciano@aol.com (Blog Author)15574 — Mon, 20 Jul 2009 08:00:00 EST

NEW JERSEY'S CONSTRUCTION LIEN LAW IN BERGEN AND PASSAIC COUNTIES:
INTRODUCTION TO NEW JERSEY'S CONSTRUCTION LIEN LAW

For many years, a contractor's or subcontractor's opportunity to file a mechanic's lien was controlled by New Jersey's Mechanic Lien Law. This law placed upon a contractor the responsibility to file a pre-filing notice in order to perfect a construction lien. The pre-filing notice tended to create a level of distrust between the contractor and the landowner. In addition, the entire process was cumbersome, costly and consumed a lot of time.

In 1994, New Jersey's Legislature implemented the "Construction Lien Law." (Act). The Act was designed to accommodate a number of policy considerations included: (1) the need to secure payment for the contractors and other people who work construction projects; (2) protect the owners of real property from meritless claims; (3) streamline and simplifying the procedure needed to obtain a construction lien; and, (4) establish a special procedure for filing a construction lien on residential property.

Absent certain well-defined exceptions, the Act allows a contractor, subcontractor and the providers of services, materials or equipment, as well as, certain

professionals to file a construction lien against real property. The Act prohibits any effort to require a waiver of the right to file a construction.

In the blog postings that follow, I will identify the major issues associated with the filing of a construction lien in New Jersey. For more information, on this topic visit my website at www.ftlucianolaw.com where you can download my handbook titled "New Jersey's Construction Lien Law: A User's Guide".

NEW JERSEY'S CONSUMER FRAUD ACT (CFA) IN BERGEN AND PASSAIC COUNTIES: THE APPLICATION OF CFA ON THE SALE OF A SECURITY

ftluciano@aol.com (Blog Author)15482 — Fri, 17 Jul 2009 08:00:00 EST

NEW JERSEY'S CONSUMER FRAUD ACT (CFA) IN BERGEN AND PASSAIC COUNTIES:
THE APPLICATION OF CFA ON THE SALE OF A SECURITY

After returning a $12,000 settlement in a personal injury claim, Margaret Lee took her check to the Hillside Branch of First Union

National Bank and instructed an employee to invest $2,000 in a mutual fund. That investment was never made. The bank

employee, who failed to make the investment sought to settle the case with Lee personally. The settlement was rejected and

Lee filed an action under New Jersey's Consumer Fraud Act (CFA). The case was ultimately dismissed by the trial division

because it involved a securities investment. On appeal, however, the trial court's decision was reversed.

Recently, the Supreme Court reversed the Appellate Division's decision and concluded that the CFA did not apply to the sale of

securities. In reaching its decision, the court followed the legislative history and observed that while the legislators' intention

was to have the CFA broadly applied, the 1976 amendment to the CFA specifically defined merchandise in a way that did not

include securities.

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

ftluciano@aol.com (Blog Author)15419 — Thu, 16 Jul 2009 08:00:00 EST

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.

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

ftluciano@aol.com (Blog Author)15364 — Wed, 15 Jul 2009 08:00:00 EST

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.

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

ftluciano@aol.com (Blog Author)15294 — Tue, 14 Jul 2009 08:00:00 EST

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.

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

ftluciano@aol.com (Blog Author)15223 — Mon, 13 Jul 2009 08:00:00 EST

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.

DRUG LAWS IN BERGEN AND PASSAIC COUNTIES: MIRANDA WARNINGS IN A DRUG RELATED STOP

ftluciano@aol.com (Blog Author)15122 — Fri, 10 Jul 2009 08:00:00 EST

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.

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

ftluciano@aol.com (Blog Author)14511 — Tue, 30 Jun 2009 08:00:00 EST

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.

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

ftluciano@aol.com (Blog Author)14453 — Mon, 29 Jun 2009 08:00:00 EST

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

A few weeks ago, I addressed a question of whether evidence obtained in violation of a defendant's constitutional right could be used by the government to impeach the credibility of a defendant at trial. In April of this year the United States Supreme Court addressed that same issue in a case involving a murder prosecution in Kansas.

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.

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

ftluciano@aol.com (Blog Author)14347 — Fri, 26 Jun 2009 08:00:00 EST

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.

DRUNK DRIVING (DWI/DUI) IN BERGEN AND PASSAIC COUNTIES: DRUNKEN IDLING

ftluciano@aol.com (Blog Author)14309 — Thu, 25 Jun 2009 08:00:00 EST

DRUNK DRIVING (DWI/DUI) IN
BERGEN AND PASSAIC COUNTIES:
DRUNKEN IDLING

For a good number of years, courts in this state have allowed convictions of drunk drivers to stand even though the accused was not driving a vehicle in its traditional sense. The core of each of these cases was that the defendant had the intent to operate the vehicle grounded upon the facts that existed in each of these cases.

Last month, an appellate panel reversed the drunk driving (DWI/DUI) conviction of a defendant who was found asleep in an idling vehicle at 2:00 a.m. At trial, the defendant produced evidence that established that he did not drive the vehicle to the site of the arrest; that he did not intend to drive the vehicle at the site of his arrest; that he expected to spend the night with his girlfriend; and, that the vehicle was parked outside the girlfriend's house when he was arrested. While the trial court concluded that the evidence presented by the defendant was "a completely absurd story." The appellate panel did not and concluded that the government did not prove beyond a reasonable doubt that the defendant had the intent to operate the vehicle.

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

ftluciano@aol.com (Blog Author)14255 — Wed, 24 Jun 2009 08:00:00 EST

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.

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

ftluciano@aol.com (Blog Author)14168 — Tue, 23 Jun 2009 08:00:00 EST

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."

CRIMINAL LAW IN BERGEN AND PASSAIC COUNTIES: MANIPULATING MIRANDA

ftluciano@aol.com (Blog Author)13979 — Fri, 19 Jun 2009 08:00:00 EST

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

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

ftluciano@aol.com (Blog Author)13897 — Thu, 18 Jun 2009 08:00:00 EST

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

Many states in this country have enacted laws that allow individuals to use marijuana for medical purposes. Unfortunately, the federal government has previously vowed to prosecute drug related offenses against individuals who are authorized to use, possess or prescribe marijuana under these statutes. Recently, however, the Obama Administration has informally declared that it would no longer prosecute patients that use marijuana under these protective laws or doctors that issued the script.

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."

CONSUMER FRAUD LAW IN BERGEN AND PASSAIC COUNTIES: THE BROAD SCOPE OF NEW JERSEY'S CONSUMER FRAUD ACT

ftluciano@aol.com (Blog Author)13846 — Wed, 17 Jun 2009 08:00:00 EST

CONSUMER FRAUD LAW IN BERGEN AND PASSAIC COUNTIES:
THE BROAD SCOPE OF NEW JERSEY'S
CONSUMER FRAUD ACT

As I have explained many times in the past, New Jersey's Consumer Fraud Act (CFA)is conceived to be "one of the strongest consumer protection laws in the nation." The primary purpose of the CFA is to protect the consumer against loss resulting from fraudulent practices by persons engaged in the sale of goods and services.

In May, the Appellate Division decided a case involving a CFA claim filed by a homeowner against a "cleaning and restoration" service that was hired to remediate a finished basement damaged by a flood. After a protracted procedural history, the trial court issued a judgment in favor of the homeowner including over $40,000 in attorney fees and costs. The trial court also concluded that the homeowner did not have to pay the restoration company the balance of the contract price despite the fact that the work had been completed.(See prior blog postings on this issue). One of the major issues in the trial court's analysis of the controversy related to the fact that the remediation company failed to specifically identify the cost of the work in its contract.

On appeal, the remediation company argued that it was not a home improvement contractor and as a result, it did not have any responsibility to follow the requirements of the statute that relates to home improvement contractors. (Statute). The company also said that the homeowner had received a windfall because of its technical breach when the court discharged the homeowner's responsibility to pay the balance of this contract's value.

In rejecting the remediation company's arguments, the court looked to the language of the Statute which defines material and service providers as those who remodel, alter, paint, renovate or restore residential property. The court then observed that the advertisement disseminated by the remediation company said rather clearly that it was a "cleaning and restoration" franchise.

As to the second argument, the Appellate Division concluded that there was no evidence presented by the restoration company that would justify depriving the homeowner of the right under the CFA to obtain a dismissal of the restoration company's claim for payment.

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

ftluciano@aol.com (Blog Author)13699 — Mon, 15 Jun 2009 08:00:00 EST

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."

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

ftluciano@aol.com (Blog Author)13590 — Fri, 12 Jun 2009 08:00:00 EST

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.

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

ftluciano@aol.com (Blog Author)13553 — Thu, 11 Jun 2009 08:00:00 EST

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.

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

ftluciano@aol.com (Blog Author)13476 — Wed, 10 Jun 2009 08:00:00 EST

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.

Criminal Law In Bergen and Passaic Counties: The Right to a Speedy Trial (Part 1)

ftluciano@aol.com (Blog Author)13433 — Tue, 09 Jun 2009 08:00:00 EST

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.

Criminal Law in Bergen County: Pre-Trial Intervention Program Where the Defendant is Accused of a Second Degree Offense

ftluciano@aol.com (Blog Author)13377 — Mon, 08 Jun 2009 08:00:00 EST

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."

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

ftluciano@aol.com (Blog Author)13220 — Thu, 04 Jun 2009 08:00:00 EST

CRIMINAL LAW IN BERGEN COUNTY:
NEW JERSEY'S PRE-TRIAL INTERVENTION PROGRAM
(Part 1)

New Jersey implemented its Pre-Trial Intervention Program (PTI) by court rule over 30 years ago. The twin gold of the program is to allow a defendant an opportunity to obtain rehabilitation through treatment and to provide an effective and efficient disposition of criminal cases without the stigma of a conviction. The program's core function is to augment the criminal justice system when prosecution would be ineffective, unnecessary and counterproductive.

The legislature has identified seventeen (17) non-exclusive factors that must be considered when assessing an applicant's admissibility into the PTI program. These guidelines were conceived to prevent whimsical governmental decisions. Notwithstanding these guidelines, the prosecutor has a broad range of discretion in deciding whether a defendant may be admitted into the PTI program.

If the prosecutor decides to reject an applicant's request to enter the PTI program, the applicant will have a right to appeal that decision to the trial court. In that appeal, the applicant must establish by clear and convincing evidence that the prosecutor's decision was a clear abuse of discretion. Ordinarily, an abuse of discretion may be found by a trial court if a defendant can show that the prosecutorial veto was (a) not premised upon consideration of all relevant factors; (b) based upon irrelevant or inappropriate factors; or (c) amounted to a clear error in judgment.

Notably, people accused of drug related offenses that are not eligible for a conditional discharge under the New Jersey's drug statute may be accepted into the PTI Program. In addition, a defendant does not have to be a first time offender to qualify under the program.

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

ftluciano@aol.com (Blog Author)13171 — Wed, 03 Jun 2009 08:00:00 EST

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

ftluciano@aol.com (Blog Author)13148 — Tue, 02 Jun 2009 08:00:00 EST

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

ftluciano@aol.com (Blog Author)13075 — Mon, 01 Jun 2009 08:00:00 EST

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 County: The Exclusionary Rule and The Impeachment Exception

ftluciano@aol.com (Blog Author)12988 — Fri, 29 May 2009 08:00:00 EST

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.

Criminal Law In Bergen County: The Exclusionary Rule and The Impeachment Exception

ftluciano@aol.com (Blog Author)12922 — Thu, 28 May 2009 08:00:00 EST

CRIMINAL LAW IN BERGEN COUNTY:

THE EXCLUSIONARY RULE AND THE IMPEACHMENT EXCEPTION

(1 of 2)

For quite some time now, the law has suppressed evidence obtained in violations of certain principles involving the right to be free of unreasonable searches and seizures, the right to counsel, the right to remain silent and the rights provided under the landmark decision of Miranda v. Arizona.

The so-called Exclusionary Rule is not absolute, however, one of its noted exceptions relates to the government's ability to impeach the credibility of a defendant with evidence previously suppressed. Thus, if a defendant provides a statement admitting he is guilty to a crime, that statement can be used to attack his credibility, if he takes the witness stand and denies he is guilty, even though the statement has been suppressed because the defendant did not receive his Miranda Warning.

The philosophical basis for this exception is that the Exclusionary Rule can not and should not provide a defendant with the license to prostitute the truth.

Criminal Law in Bergen County: Megan's Law can Preempt Local Ordinances

ftluciano@aol.com (Blog Author)12796 — Wed, 27 May 2009 08:00:00 EST

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.

Consumer Fraud Act In Bergen County: Fraudulent Foreclosure Relief Scheme

ftluciano@aol.com (Blog Author)12774 — Tue, 26 May 2009 08:00:00 EST

Prior to the economic meltdown, a number of unscrupulous mortgage companies prayed on the vulnerabilities of people who could barely afford a mortgage with sub-prime lending packages and adjustable rate mortgages. With the advent of these dark financial times, a new breed of predators are making false promises to the consumer by offering help to avoid foreclosure.

A few weeks ago, New Jersey’s Attorney General’s Office filed a Consumer Fraud Act complaint against a number of these companies and instituted a advertising campaign to advise struggling mortgagors to be weary of so-called "foreclosure rescue" companies.

One company’s scheme was to offer to payoff the mortgage and to allow the owner to lease back the property at a monthly rental until a buyer was found. Shortly thereafter, however, the tenant and former owner, received an eviction notice and was dispossessed from the property. Records indicate that the defendant company later sold the property for twice the mortgage payoff.

Criminal Law in New Jersey: Global Positioning Satellite (G.P.S.) Surveillance in Criminal Investigations

ftluciano@aol.com (Blog Author)12334 — Fri, 22 May 2009 08:00:00 EST

For quite sometime now, police officers have been installing G.P.S. transmitters on a suspect’s vehicle in order to track the activity of the vehicle and the person driving the vehicle. The transmitter allows the government to collect information relating to the suspect’s habits, associations and the sites he/she frequents. There is a large group of jurisdictions where a G.P.S. can be installed on a suspects car without a warrant which is a fundamental component of the Fourth Amendment.

The National Association of Criminal Defense Lawyers have formed an alliance with varies other associations to obtain permission from various courts to file amicus curiae briefs, to assist court’s in analyzing this sensitive issue. This alliance of legal experts characterize the 24-7 monitoring of an individuals travel as a "Orwellian nightmare" that has both First and Fourth Amendment implications.

Criminal Law in New Jersey: Seach and Seizure and the Reasonable Coninuation Doctrine

ftluciano@aol.com (Blog Author)12302 — Thu, 21 May 2009 08:00:00 EST

A case recently decided by an Appellate Court in New Jersey has determined that law enforcement agents could enter a defendant’s home on more than one occasion on the basis of just one search warrant. In that case the government obtained a search warrant to enter the defendant’s home for purpose of seizing certain computers associated with child pornography offenses. One of the computer was a laptop which the defendant claimed was in his office. The government returned to conduct a second search after it learned that the computer was at the defendant’s home.

The court endorsed the process grounded upon a principle of law evolving from the federal courts titled the “reasonable continuation doctrine” which allows a government agent to suspend a authorized search and to reenter a search site at a later time. Basically, the doctrine allows for a subsequent search if it was a mere continuation of the original search and not a new one. The decision to conduct subsequent search had to be reasonable under all the circumstances.

CRIMINAL LAW IN NEW JERSEY: THE MRI AND CRIMINAL JUSTICE SYSTEM

ftluciano@aol.com (Blog Author)12055 — Fri, 15 May 2009 08:00:00 EST

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.

Criminal Law in New Jersey: The Right to a Speedy Trial

ftluciano@aol.com (Blog Author)11997 — Thu, 14 May 2009 08:00:00 EST

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.

DRUG LAWS IN NEW JERSEY: THE WAR ON DRUGS

ftluciano@aol.com (Blog Author)11982 — Thu, 14 May 2009 08:00:00 EST

In 1999, fifty African-American men and women, who constituted 80% of the population of Tulia Texas, were arrested for drug related offenses. The motivating force behind these arrest was a rogue cop who later offered false testimony at trial to secure their convictions.

This dark tale of official misconduct was first exposed by an investigative reporter and as a result of the dogged effort of a capable legal team, the group was ultimately released and pardoned.

The story is now part of a book titled “Tulia : Cocaine and Corruption in a Small Texas Town”. This book was written by the investigative reporter who uncovered the legal travisty. His name was Nate Blaksley. The basic theme of the book and a new movie soon to be released, is that the social and political hysteria created by the so called “Drug War” has diluted some of the most basic safeguards provided to Americans who are accused of a crime, especially ones that relate to drugs.

DRUG LAWS IN NEW JERSEY: THE FRAILTIES OF THE DUQUENOIS- LEVINE FIELD TEST (Part II)

ftluciano@aol.com (Blog Author)11939 — Wed, 13 May 2009 08:00:00 EST

Last summer, a boyfriend and girlfriend who were partners in an organic food business were arrested at the U.S. /Canada border by a Royal Canadian Mounted Police Officer who accused them of smuggling hashish across the border. The item that precipitated this arrest was a brick sized sample of raw organic chocolate which the police believed to be hashish. The chocolate was field tested by a Duquenois-Levine Test and the result was positive for a Controlled Dangerous Substance (CDS). Apart from the fact that the Mounty separated them from their one year old baby, they were told that they face life imprisonment. After much effort they where released on bail pending prosecution.

Still interested in marketing their products in New York, the couple decided to enter the U.S. again, a few weeks later. This time, however, they hired a immigration lawyer to cross the border ahead of them so as to inform the authorities that they were on a legitimate business trip. One of the products they were carrying was tea tree oil from Australia. The oil tested positive for a (CDS). The customers officers believed that the substance was hash oil.

Subsequent laboratory determined that the products contained no illicit drugs. At that point, however the couple had spent $20,000 in legal fees.

DRUG LAWS IN NEW JERSEY: THE FRAILTIES OF THE DUQUENOIS- LEVINE

ftluciano@aol.com (Blog Author)11922 — Wed, 13 May 2009 08:00:00 EST

For over seventy years, the Duquenois- Levine Test (CDS) has been used as a field test by law enforcement agents to detected controlled dangerous substance. Recent studies have shown that the DLT can provide a false positive result to eucalyptus, patchouli and cypress as well as Hershey’s Dark Chocolate Kiss and varies other chocolate products.

Another other test known as the KN Reagent Test, which is also used as a field test by law enforcement agents can provide false positives for many herbs including thyme, oregano, anise extract, ginseng, vanilla and peppermint.

Most good criminal lawyers are aware of the frailties of these field tests and maintain a careful watch over cases were the underline arrest was precipitated by the use of these test. These types of test should never be allowed into evidence.

CRIMINAL LAW IN NEW JERSEY: THE NEW PROCEDURAL CHANGES TO MEGAN'S LAW

ftluciano@aol.com (Blog Author)11829 — Mon, 11 May 2009 08:00:00 EST

New Jersey’s Megan’s law allows the government to closely monitor sex offenders convicted of certain offenses. The government’s right to maintain vigilance over a convicted sex offenders is influenced by a risk assessment scale which considers, among other things, the likelihood of a sex offender’s recidivism. Categorically, that assessment is grounded upon three tiers: Tier 3(high risk); Tier 2( moderate risk); and, Tier 1(low risk).

Last month New Jersey’s Supreme Court implemented a new instruction manual for trial judges that identifies the procedure to be followed when addressing tier designation, tier modification or tier termination. The most innovative aspects of the procedure is an in camera proceeding where the defendant, his/her counsel and the prosecutor can discuses with the judge in his chambers sensitive issues that may influence the judge’s decision making. Notably, at this in camera hearing, the defendant has the right to personally address the court.

New Jersey's Consumers Fraud Act: The Element of Materiality

ftluciano@aol.com (Blog Author)11750 — Fri, 08 May 2009 08:00:00 EST

New Jersey’s Appellant Division has decided a new that case addresses the question of materiality in the context of the state’s Consumer Fraud Act (CFA). In that case, a homeowner sued a swimming pool contractor who installed a pool that caused flooding in his home because of the elevation of the pool.

The trial judge concluded that the pool installer violated the CFA because the pool installer did not consult with the homeowner about the pool’s elevation. He also concluded that the homeowner suffered damages that exceeded $67,000. By the instruction of the CFA, that judgement was trebled.

The case was reversed on appeal, however. The court concluded that in order for a misrepresentation to be actionable under the CFA, it must be material, while meant that the consumer had to show: (a) a reasonable consumer considered the representation important in making a choice; or (b) the person making the representation knew or should have known that the consumer would regard the matter as important in making a choice.

The appellant next observed that while the elevation of the pool would be an important issue for anyone in deciding to install a pool, the homeowner had to establish that the pool installer promised to consult with him/her as to the elevation of the pool before the issue could be determined to be a material term of the contract.

Drug Laws in New Jersey: The Frailities of the Duquenois-Levine Field Test

ftluciano@aol.com (Blog Author)11698 — Thu, 07 May 2009 08:00:00 EST

For over seventy years the Duquenois- Levine Test (DLT) has been used as a field test by law enforcement agents to identify controlled dangerous substances. (CDS). Recent studies have shown that the DLT can provide a false positive result to eucalyptus, patchouli and cypress, as well as Hershey’s Dark Chocolate Kiss and various other chocolate products.

Another other test known as the KN Reagent Test, which is also used as a field test by law enforcement agents can provide false positives for many herbs including thyme, oregano, anise extract, ginseng, vanilla and peppermint.

Most good criminal lawyers are aware of the frailties of these field tests and maintain a careful watch over cases were the underlying arrest was precipitated by the use of these test.

Criminal Law in New Jersey: Miranda Warnings and the Right to Post Silence

ftluciano@aol.com (Blog Author)11668 — Wed, 06 May 2009 08:00:00 EST

Over forty (40) years ago, the U.S. Supreme Court decided the landmark case of Miranda v. Arizona, which required law enforcement agents to provide certain warnings relating to an defendant’s constitutional rights. One of those warnings is that the defendant has a right to remain silence.

As time passed, law enforcement agents tried to use the post-arrest silence of a defendant for purposes of proving his guilt. For example, if a defendant was arrested with possession of marijuana, a prosecuting attorney would ask the investigating police officer a line of questions like: Did he looked surprised or upset? Did he say anything and did he deny knowledge of the marijuana?
It was not too long before that issue was taken to the Supreme Court where, it was determined in Doyle v. Ohio, that the government could not induce a defendant to remain silence consistent with the Miranda warnings and then to use that silence to the defendant’s detriment.

Some jurisdictions have decided to apply these principles even where there is pre-arrest silence.

Does New Jersey's Consumer Fraud Act Apply to Construction Contacts Where the Work is Merely Shoddy?

ftluciano@aol.com (Blog Author)11628 — Tue, 05 May 2009 08:00:00 EST

New Jersey’s Supreme Court has concluded that the Consumer Fraud Act ( CFA) does not apply where a contractor provides shoddy work under a construction contract because that type of conduct is not necessarily "unconscionable" or "unfair" as those terms are defined under the CFA. At best, poor workmanship will produce a breach of contract claim.

In order for the CFA to apply to a claim relating to sloppy workmanship there must be some aggravating circumstances that are substantial in nature. Thus, if the contractor has failed to comply with local building code responsibilities or home repair regulations, the CFA will be applicable. A remedy under the CFA would also apply, if the contractor intentionally used inferior building products.

New Jersey's Consumer Fraud Act and its Potential Application to Casual Sellers

ftluciano@aol.com (Blog Author)11502 — Fri, 01 May 2009 08:00:00 EST

A while ago, an individual from Missouri purchased a 1970 Corvette from a New Jersey resident who advertised the vehicle on eBay and claimed that the vehicle was in " good condition". When the buyer received the vehicle it was virtually inoperable and he had to spent approximately $40,000 to fix it. The buyer sued the seller under various theories of liability, including New Jersey’s Consumer Fraud Act.(CFA)

At the trial level, the buyer obtained a judgement in the sum of $62,000 including approximately $30,000 in counsel fees. On appeal New Jersey’s Appellate Division reversed as to the CFA claim. The core of the Appellate Division’s decision was that the CFA did not apply to a casual seller, but rather, a "dealer" of services or product. The case ultimately reached New Jersey’s Supreme Court. There the court reinstate the verdict at the trial level and concluded that the seller was a "person" as defined by the CFA even though he was not a true dealer. In writing the decision, Justice Rivera- Soto observed that the buyer had pled and proven a "textbook claim" under the CFA.

The seller attorney has since complained about the Court’s ruling, contending that the CFA may now apply to individuals who conduct garage sales.

The Right to Counsel in New Jersey: The Court's Responsibility to Provide Specific Advice

ftluciano@aol.com (Blog Author)11481 — Thu, 30 Apr 2009 08:00:00 EST

A trial court has an affirmative responsibility to advise criminal defendants of their right to counsel. In a recent Appellate Division decision, the court concluded that a trial court was required to give a defendant specific instructions into material areas of the defendant's case.

In the case subject of the court’s opinion, it was concluded that a defendant should be told that if he/she could not afford an attorney, one would be assigned to him/her. In addition, the trial court had the responsibility to disclose to the defendant the specific term of incarceration if a conviction resulted.

In closing its decision, the appellate court concluded that a “searching and a pain staking inquiry” is required by a trial court before a waiver of counsel can occur.

The Prompt Presentment Rule in Federal Prosecutions

ftluciano@aol.com (Blog Author)11418 — Wed, 29 Apr 2009 08:00:00 EST

A person arrested by the Federal Government has a right to be taken before a magistrate " without unnecessary delay". In those instances where a defendant has given a confession where there was a impermissible delay in presenting him/ her to a magistrate, the courts will suppress the confession.

Recently, the United States Supreme Court reaffirmed that principle in a case where the time hiatus between arrest and presentment to a magistrate was approximately twenty-nine hours. During that time, the defendant confessed to the crime subject of the government’s investigation. The court observed that the " prompt presentment" requirement was not just an administrative rule that could be bent at the government’s discretion, but rather, a very important one because when the defendant is presented to a judge or magistrate a number of steps will be taken to foreclose governmental overreach, including advising the defendant of his right to counsel. Resultingly, the court decided to suppress the confession.

New Jersey's Consumer Fraud Act: The Ascertainable Lost Standard

ftluciano@aol.com (Blog Author)11337 — Mon, 27 Apr 2009 08:00:00 EST

A claimant under New Jersey’s Consumers Fraud Act ( CFA) must establish an "ascertainable loss" in order to recover damages in a CFA. If an ascertainable lost is established, the court will have the affirmative responsibility to issue a judgment against the wrongdoer for three times the amount of that loss.

The cases in New Jersey have concluded that an ascertainable loss is something that must be "quantifiable" "measurable" or "real and demonstrable". In short, an actual lost must be shown.

In cases involving a breach of a contract an ascertainable loss may be any out-of-pocket expense. Where there is a misrepresentation, an ascertainable loss can be established by showing the difference in value between the product or service as represented verses what was actually given.

State v. Chun: A Post Script

ftluciano@aol.com (Blog Author)11261 — Fri, 24 Apr 2009 08:00:00 EST

In 2008, New Jersey’s Supreme Court concluded that the government could use the results of an Alcotest to determine the blood alcohol concentration of a suspect in a drunk driving case (DWI/DUI). That decision was riddled with a whole host of conditions. Two of those conditions required the government to make certain upgrades to the Alcotest and to establish a database that could be read by the public to track the Alcotest’s readings throughout the state. The upgrade condition was conceived to reduce the tolerance problems with the Alcotest and the database condition to determine the nature and extent of any abnormal readings, so as to allow defense attorneys to continue to test the reliability of the Alcotest.

Recently, the New Jersey Bar Association filed a motion with the court claiming that the Attorney General’s Office had failed to create the upgrades or the database.

A New Jersey Hearsay Exception in New Jersey? Not Yet

ftluciano@aol.com (Blog Author)11225 — Thu, 23 Apr 2009 08:00:00 EST

For centuries the law has prohibited a witness from testifying about the declarations or statements of someone else. Over the years, certain exceptions to the so-called "hearsay rule" have been created.

A week or two ago, New Jersey’s Supreme Court deferred on an opportunity to create yet another exception. In the case of State v. Byrd, the court was asked to determine whether a prior statement given by a witness to investigators in a murder case could be used as evidence, where the witness refused to testify at trial because of death threats made by the defendants . Although the court refused to create this new exception, it seriously urged the legislators to amend New Jersey’s Rules of Evidence to accommodate such an exception.

New Jersey's New Home Warranty and Builders Registration Act: The Election of Remedies Issue

ftluciano@aol.com (Blog Author)11176 — Wed, 22 Apr 2009 08:00:00 EST

New Jersey’s New Home Warranty and Builders Registration Act (ACT) is a broad-base statute conceived to protect new home buyers. The Act requires the builder of a new home to purchase a warranty from the Department of Community Affairs that covers certain defects in workmanship or building materials.

The Act allows new home buyer who have claims against their builder to process those claims under a rather informal dispute resolution mechanism that requires the new home buyer to notify the builder of the problems and then to engage in a conciliation process. If the claim is not settled with discussion, the contest will be brought to an arbitrator. The Act further provides that the new home buyer can disregard this informal procedure and file a lawsuit. If, however, the claimant seeks arbitration under the Act, that election of remedies will ordinarily preclude a new home buyer from filing a lawsuit later.

At times, a new home buyer claimant will become disconcerted with the arbitration process or otherwise learn that the nature of their claim against the builder was a violation of New Jersey’s Consumer Fraud Statue. In those cases, the new home buyer may try to abandon the arbitration process under the Act and file a lawsuit. As a result of the election of remedies provision contained in the Act, the new home buyer may be barred from prosecuting their claims in a law suit.

The War on Drugs: Another Casualty

ftluciano@aol.com (Blog Author)11130 — Tue, 21 Apr 2009 08:00:00 EST

Over the last forty years, the "War on Drugs" has produced a literal battlefield of casualties. One of the most troubling of these casualties was a thirteen year old female high school student who was stripped searched by school authorities, while on school property . The facts of this unsettling case are identified in Redding v. Safford Unified School District.

The catalyst for the search began when another student was found with drugs and claimed that she obtained them from the subject of the strip search. Although the student subject of the search denied the accusation and a search of her backpack produced no evidence, the principle insisted that a female assistant and a school nurse conduct the strip search, which included the removal of the student’s bra and panties. Suffice it to say, that search was non-productive as well.

It was not surprising that the student sued the school district, the principal and various others for invading her Constitutional Rights. The case has reached the United States Supreme Court to determine, among other things, whether the principal’s conduct was immune from civil liabilities.

Legal Malpractice in New Jersey an Unauthorized Settlement

ftluciano@aol.com (Blog Author)11094 — Mon, 20 Apr 2009 08:00:00 EST

The law in New Jersey states rather clearly that an attorney has the authority to settle a case on behalf of his/her client. If settlement agreement is reached by the attorneys, that agreement is binding and enforceable against the client irrespective of whether the attorney received the actual authority to settle a case from the client.

On many occasions a client will have second thoughts about the terms of a settlement and will seek to undo what had been done by his/her attorney, by claiming that a settlement was never authorized. Despite this contention courts will ordinarily deny an application to set aside a settlement. In that case, a client’s recourse is against the attorney in a legal malpractice action.

Clearly, in order to obviate a controversy of this nature, an attorney should always have the client present when the settlement is presented to the court to confirm its terms or the settlement should be conditioned on the client’s written approval.

New Jersey's Consumer Fraud Act: and Its Contractor's Registration Act

ftluciano@aol.com (Blog Author)10966 — Wed, 15 Apr 2009 08:00:00 EST

New Jersey’s Contractor’s Registration Act (Registration Act) is intertwined with its Consumer Fraud Act (CFA). The Registration Act does not usually apply to the construction of a new home. A week or so ago, the New Jersey Supreme Court concluded that both the Registration Act and the CFA applied to new home construction where the owners functioned as a general contractor and hired a subcontractor to install molding, interior doors, chair rails, and cabinets in their kitchen. In reaching its opinion, the Court once again observed that New Jersey’s legislators created the CFA to be read as one of the broadest consumer protection laws in the country.

I have published a book titled "Walk the Chalkline or Else: A Home Improvement Contractor’s Guide to New Jersey’s Contractor’s Registration Act and Consumer Fraud Act " which you can download from the website www.ftlucianolaw.com. You can read other related articles in the Library Section on this website.

New Jersey's Construction Lien Law and its Application to Residental Construction Contracts

ftluciano@aol.com (Blog Author)10925 — Tue, 14 Apr 2009 08:00:00 EST

New Jersey’s Construction Lien Law requires a contractor, material supplier and some professionals (Lien Claimants), to satisfy certain special conditions before a construction lien can be placed on residential property. Some of those conditions include a notice to be sent to the landowner that identifies the unpaid balance due to the Lien Claimant and the Lien Claimant’s right to file a lien if payment is not made. In addition, the Lien Claimant must first arbitrate the claim before a Construction Lien can be filed.

While one would ordinarily conclude that this special procedure was conceived to protect the mom and pop homeowner, a few years ago, a bankruptcy court in the District of New Jersey concluded that this process can also apply to multi- family development projects like condominiums and town houses. In that case the judge invalidated a number of construction liens placed on a multi- unit residential construction project because the Lien Claimants had failed to follow the procedure associate with filing construction liens on residential property.

Court Room Attire in a Criminal Trial: What's Good for the Goose is Good for the Gander

ftluciano@aol.com (Blog Author)10911 — Mon, 13 Apr 2009 08:00:00 EST

Historically, the courts in New Jersey have made every possible effort to ensure that a person accused of a crime appears at trial without restraints or prison garb, so as to prevent the accused from being prejudiced by his/her appearance. Five or six years ago, the Supreme Court concluded that a defense witness could not be brought to court wearing prison clothes and in the absence of some extraordinary safety issue, the witness could not be shackled either. A couple of weeks ago, the Supreme Court concluded that a similar rule should apply to the government’s witnesses.

Once again, the court stressed the need for trial judges to assess the security risks associated with an unshackled witness or defendant, but in discharging that responsibility trial judges should presume that all witnesses and all defendants are to testify without restraints.

Drug Sniffing Dogs Nosing Around New Jersey Schools

ftluciano@aol.com (Blog Author)10781 — Thu, 09 Apr 2009 08:00:00 EST

More and more schools districts are resorting to drug sniffing dogs to locate drugs secreted in student’s lockers. Opponents of this practice complained that dog searches violate the students rights, and interferes with the environment necessary to educate. Some say the process literally frightens the students to death. Proponent of the practice say that when students see the capabilities of the dogs they will think twice about bringing drugs on to campus.

Trainer and handlers of these drug sniffing dogs claim that they have accuracy rates that range between 85 to 95% . Some school districts will literally conduct a demonstration to impress the students of the dog’s capabilities. These demonstrations have prove to be rather effective.

Most districts do not allow the dogs to search the students, but only lockers and other common areas including parking lots. Searches are conducted randomly. The American Civil Liberties Union has managed to convince some school officials to search suspected lockers outside the presence of law enforcement agents.

For more information relating to drug related offenses read my book, "The Drug War: The Other Casualities" which you can downloand on my website at www.ftlucianolaw.com.

The Alcotest in New Jersey: The Twenty Minute Wait

ftluciano@aol.com (Blog Author)10749 — Wed, 08 Apr 2009 08:00:00 EST

Last year, New Jersey’s Supreme Court rendered a well-integrated decision that identified the conditions associated with the admissibility at trial of the result of an AlCOTEST in a drunk driving (DWI/DUI ) prosecution. One of those conditions required the government to observe the defendant for a period of twenty minutes before administering the test. The purpose of this observation period is to determine whether the subject burped, regurgitated, or ingested anything which are all events that can effect the reliability of the equipment.

Recently, a Mercer County Judge reversed a drunk driving conviction where two police officers alternated their watch of a defendant, where only one could remember what he saw. The Judge concluded that the twenty minute observation period was a necessary element of the government’s case and that it had to be proven by clear and convincing evidence.

I have recently published a book titled: "New Jersey’s DWI Survivor’s Guide" which you can download on my website at www.ftlucianolaw.com. There is other information on this subject located in the Library Section of this website.

Legal Malpractice in New Jersey: The Collectibility Issue

ftluciano@aol.com (Blog Author)10707 — Tue, 07 Apr 2009 08:00:00 EST

I have previosuly ecplained that the "suit within a suit" concept in a legal malpractice case was conceived to allow a client victimized by an attorney's negligence to receive what he/she would have received, but for the attorney's negligence.

Another component of the "suit within a suit" concept is the so- called collectibility issue . Even if an attorney’s negligence is glaring, the client my not be able to recover any money from the attorney if the original wrongdoer did not have the funds necessary to pay the judgement. Thus, if you are involved in an automobile accident were the other driver is 100% at fault and the lawyer you engaged to prosecute the claim failed to file the case within the statute of limitation you may not recover any money from the attorney if the other driver had no asset, or no job and could not otherwise pay the judgement.

Dirty Judges in Pennsylvania Sentence Juveniles to Detention Facilities for Profit

ftluciano@aol.com (Blog Author)10653 — Mon, 06 Apr 2009 08:00:00 EST

Two judges in Pennsylvania recently pled guilty to a federal tax evasion indictment involving $2,600,000 in kickbacks they received from sentencing thousands of juveniles to a youth facility owned in part by a well- heeled personal injury lawyer.

This outrageous scheme had two illicit levels. The first was when Judge Michel T. Conahan, who controlled the purse strings of Luzerne County, where the facility was located, virtually steam rolled the private detention center into existence by squeezing the competition, suffocating complaints and authorizing the money to build the center.

The next phase related to Judge Conahan’s friend, colleague and neighbor, Judge Mark A Ciavella , who worked the juvenile court in Luzerne County. Judge Ciavella sentenced juvenile offenders to the detention facilities at twice the rate that existed throughout the state in order to insure that the facility had a steady source of income. His illegal agenda became so notorious that defense lawyers refused to represent clients before his court because they were not allowed to argue their client’s cause . Incredibly, detention center workers were told at the beginning of the day how many inmates could be expected even before the judge heard the evidence or the juvenile’s defense. In one case, Judge Ciavella sent a 13 year old first offender to detention because he failed to appear, as a witness in a case where his parents never received notice. In another case, he sentenced a juvenile to five months in boot camp because he acted as a lookout for a friend who stole some DVD’s from a Walmart. He too was a first offender.

Both of these crooked judges will be sentenced under a plea agreement that will expose them to seven years in jail

New York's Rockefeller Drug Law: A Swan Song to One of the Toughest in the Country

ftluciano@aol.com (Blog Author)10601 — Fri, 03 Apr 2009 08:00:00 EST

For almost forty years New York State has had one of the toughest drug law in the nation. It was known as the Rockefeller Drug Law because it was implemented during the term of Governor Nelson A. Rockefeller at a time when New York was suffering from a heroin epidemic that was decimating its urban areas.

Recently, Governor David A. Paterson and legislative leaders have agreed to loosen up the penalties for low- level drug offenders. These new laws will focus on treatment as opposed to mandatory jail time. One of the principal motives for the change was a recognition that the cost of incarcerating a prisoner, which is approximately $45,000, is a lot more than the cost of treatment.

This change in philosophy is consistent with a number of other states in the country including the state of New Jersey, where its drug court has proven to be rather efficient and effective.

Legal Malpractice Cases In New Jersey: The Need for An Expert Witness

ftluciano@aol.com (Blog Author)10559 — Thu, 02 Apr 2009 08:00:00 EST

A legal-malpractice case is nothing more than a lawsuit based on the negligence of an attorney. The elements of a legal malpractice case are: (1) the existence of an attorney-client relationship; (2) the breach of a duty owed to the client by the attorney;(3) damages sustained by the client; and (4) a causal relationship between the damages and the negligence of the attorney.

Ordinarily, expert testimony is required in all legal malpractice cases as well as other professional malpractice cases. That is so because the duties a lawyer owes to a client are not know to the average juror. Indeed, the law in New Jersey states rather clearly that within sixty (60) days from the date a professional malpractice lawsuit is filed, the claimant must file an affidavit signed by an appropriate expert confirming that the targeted professional was negligent, and failing that the lawsuit must be dismissed.

Where, however, the issues are within the ordinary knowledge and experience of an average person, an expert witness may not be required. The "Common Knowledge Doctrine" has been used in a number of diverse situations, including where: (1) an attorney failed to record a bond and mortgage; (2) an attorney failed to file a suit before the running of the statute of limitations; (3) an attorney failed to conduct an appropriate investigation in a personal injury claim; (4) a physician left a needle in a patient’s chest; (5) a chiropodist accidentally cut a diabetic’s toe; (6) a dentist extracted the wrong tooth; (7) a radiologist failed to immediately advise a patient of a possible lung tumor detected on an x-ray; and (8) a physician applied a caustic liquid to a patient causing severe disfiguration.

The Informant's Privilege in the State of New Jersey

ftluciano@aol.com (Blog Author)10519 — Wed, 01 Apr 2009 08:00:00 EST

There is a rule of evidence in New Jersey that protects the identity of a confidential informer. The basis of the so-called "snitches’s privilege" is grounded upon the government’s need to secure information relating to criminal activity from people associated with criminals. This is especially so where the illicit acitivty relates to drug transaction. In order to accomplish that task effectively, the government must be able to provide anonymity to the informant. Otherwise, the informant can be harmed and, as a result, people may be loath to cooperate with the government.

While there is a presumption against disclosing an informant’s identity, the privilege is not absolute. Disclosure can be required to protect the accused’s constitutional rights. Thus, where an informant is an essential witness on a critical factual contest or actively participated in the crime or it appears that the defendant has a reasonable entrapment defense, disclosure may be required. Disclosure will not be required, however, if the informant merely introduced the defendant to the government agent and otherwise observed the criminal transaction.

You can read more about the Informer’s Privilege in a book I recently published, which can be download on my website at www.ftlucianolaw.com.

The Suit Within A Suit Component of Legal Malpractice Claims in New Jersey

ftluciano@aol.com (Blog Author)10461 — Tue, 31 Mar 2009 08:00:00 EST

If an attorney in New Jersey fails to file an action within the statute of limitations, or otherwise fails to meet other time-bar requirements, the client who is victimized by the attorney’s negligence must establish that he/she would have obtained a monetary recovery in the underlying case, as well as the amount of the recovery. The so-called "suit within a suit" concept in legal malpractice cases was conceived to determine what would have taken place in the underlying action but for the attorney’s malpractice.

The concept has been subject of significant complaints. The principal reason is that the legal malpractice claimant does not have access to the same quality and quantity of evidence that could have been used to prosecute the underlying action because of the passage of time. There are occasions, however, when the court will side-step the "suit within a suit" approach and allow a legal malpractice claimant to establish the anticipated results of the underlying case with the use of expert testimony which is usually in the form of an attorney or other expert who is familiar with the subject matter of the underlying case. This alternative is a less complex and a more cost efficient method of assisting a jury to come to terms with the convoluted concepts that are usually associated with cases of this nature.

Rules of Professional Conduct and There Influence on a Legal Malpractice Claim in New Jersey

ftluciano@aol.com (Blog Author)10405 — Mon, 30 Mar 2009 08:00:00 EST

Attorneys, like most other professionals, are controlled by rules that are usually created by the organizations that monitor the professional’s activity in the marketplace.

The rules of professional conduct (RPC) that control the activities of attorneys in the state of New Jersey are based on the American Bar Association’s Model Rules, which have been revised by a committee empaneled by the New Jersey Supreme Court.

On many occasions, a claimant who has been victimized by a lawyer’s malpractice may look to the RPC’s to establish the lawyer’s negligence. In this regard, the court’s in New Jersey have consistently concluded that the RPC’s can be considered for purposes of assessing the negligence of an attorney. Thus, if a lawyer violated an RPC that violation is evidence of his/her negligence. Notably, however, the courts have continued to declare that a mere violation of an RPC, standing alone, can not form the basis of a legal malpractice claim.

Can a Settlement Bar a Legal Malpractice Claim in New Jersey?

ftluciano@aol.com (Blog Author)10353 — Fri, 27 Mar 2009 08:00:00 EST

In a number of jurisdictions, there is a rule of law that will prevent a litigant from obtaining a recovery against an attorney for malpractice, where the litigant has accepted the terms of a settlement in the case subject of the attorney’s negligence, unless it can be shown that the attorney acted fraudulently. That rule does not apply in New Jersey. While the courts in New Jersey readily recognizes the importance of settlements in reducing the public and private costs of litigation, it has concluded that an attorney can be held professionally responsible for a settlement that has been negligently constructed because the client relies heavily on the advice of the attorney.

The rule is especially compelling if the attorney’s negligence prompted the settlement. For example, if an attorney fails to plead a responsible party in an automobile accident case and the client is required to accept a settlement that is less than the full value of the case, the client should have a claim against the attorney. Similarly, if an attorney fails to conduct a thorough investigation to the extent that a client agrees to settle a case ignorant of information that would have greatly influenced the worth of the case, the derelict attorney will be responsible for the client’s loss.

Anticipated Changes in New Jersey's Post Conviction Relief Rule

ftluciano@aol.com (Blog Author)10316 — Thu, 26 Mar 2009 08:00:00 EST

One of the basic goals of the American justice system is finality. Thus, there are certain timelines that must be met. If a civil or criminal litigant wishes to file an appeal, those time constraints are usually strictly construed absent exceptional circumstances. Moreover, once the appellate process is completed, a litigant can rarely get a "second bite at the apple."

In New Jersey, like many other states, a defendant can obtain further judicial review even when an appellate deadline has passed or when the direct appellate process has been completed under a procedure known as Post Conviction Relief. (PCR). A PCR application is the federal equivalent to Habeas Corpus in that it provides a defendant with an opportunity to challenge the integrity of his/her incarceration even after appeals have been exhausted or the time for an appeal has passed. The grounds upon which a defendant may file a PCR application are rather narrowly drawn and usually severely scrutinized because the general consensus is that PCR is merely a back-door request to analysis issues that should have been raised on appeal or were unsuccessfully on appeal.

Despite the difficulty in obtaining relief, PCR filings in the state of New Jersey have increased significantly since 2004. A recent committee created by the New Jersey Supreme Court is now proposing a major overhaul of the process. The most significant change recommended by the committee would be to make it more difficult for defendants to file repeat petitions for PCR on the basis of newly found legal or factual contentions. The proposal was conceived to provide defendants with a strong incentive to raise all issues in one PCR application.

Other recommendations were: (a) an increase in the time to assign petitions to the Public Defenders office; (b) a 30 day limit for the trial court to render final decisions on PCR motions; and (c) standards for deciding whether to hold an evidential hearing.

While one of the committee members did not believe that the proposed amendments would alleviate the number of PCR petitions, he felt that the amendments would make a more efficient procedure for the disposition of multiple PCR petitions.

The Right to A Jury Trial in New Jersey

ftluciano@aol.com (Blog Author)10276 — Wed, 25 Mar 2009 08:00:00 EST

The Sixth Amendment of the United State’s Constitution insures the right to a jury trial for people charged with a criminal offense. The right to a trial by jury can be traced back to the Magna Carta in England. The historic purpose of this right to a jury trial was to prevent oppressive government conduct. For purposes of determining a citizen’s right to a jury trial, however, a distinction is drawn between a criminal offense and a petty offense.

The New Jersey Supreme Court has concluded that the only reliable distinction between a criminal offense and a petty offense is the punishment that may be imposed if a conviction results. Thus, it has been concluded that a jury trial will attach to a criminal accusation where the maximum penalty exposes the defendant to a term of incarceration that exceeds if six months and a fine of $1,000. In those cases, where a defendant is charged with multiple offenses that can require a maximum sentence that exceeds more than six months in jail, a trial judge will be required to impose a concurrent jail terms that can not be more than six months.

An Exception to the Attorney/Client Relationship Element of a Legal Malpractice Claim Filed in New Jersey

ftluciano@aol.com (Blog Author)10236 — Tue, 24 Mar 2009 08:00:00 EST

As previously explained, one of the most academic elements of a legal malpractice case is the existence of an attorney/client relationship. At times, an attorney has been held responsible for legal malpractice where the claimant was not a client.

Generally, the court will allow a non-client to assert liability against an attorney, when it is determined that the attorney intended or should have foreseen that the third-party would rely upon the attorneys’s advise or legal services. Thus, an attorney has been held responsible for a non-client’s losses, where the attorney supplied inaccurate percolation tests that where relied upon by the non-client to purchase property. On another occasion, a law firm was successfully sued because of a misrepresentations contained in a Public Offering Statement that induced a purchaser to enter into a transaction.

The Attorney/Client Element of a Legal Malpractice Claim

ftluciano@aol.com (Blog Author)10130 — Fri, 20 Mar 2009 08:00:00 EST

The classic components of a legal malpractice claim in New Jersey are: (a) the existence of an attorney/client relationship; (b) a breach of the duty associated with this special relationship (i.e. the attorney’s negligence); and (c) damages caused by the attorney’s negligence.

As strange as it may seem, an attorney/client relationship can be created without an oral or written agreement. The relationship can be implied from certain facts, including where the claimant indicates a need for legal services and the attorney signals an intent to provide those services or actually provides legal advice. The analysis of the issue is extremely fact sensitive and seems to focus on the claimant’s reliance on the professional skills of the attorney, along with the attorney’s awareness of that reliance and a tacit acceptance of it.

Social Networking and Its Affect on the Criminal Justice System

ftluciano@aol.com (Blog Author)10107 — Thu, 19 Mar 2009 08:00:00 EST

For quite sometime, I have written about the consequences of social networking in the criminal justice system. Within recent times, there have been some remarkable developments on this issue.

A week or so ago, a judge granted a mistrial in a drug prosecution in Florida when he learned that nine jurors were conducting online research relating to issues developed in the case.

On Monday, a defense attorney in a federal corruption trial involving a senator from Pennsylvania requested a mistrial because a juror posted updates of the case on Twitter and Facebook.

Last week, a civil litigant sought to overturn a $12.6 million dollar judgment because a juror used Twitter to post developments in the case.

As a result of these newfound problems, trial judges are now amending their instructions to jurors to specifically address internet researching and social networking exchanges.