Attorney Blog

DRUG/CRIMINAL ATTORNEY IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: CAN EVIDENCE SEIZED IN A DOMESTIC VIOLENCE SEARCH BE USED IN A SUBSEQUENT CRIMNAL PROSECUTION

Fri, 03 Feb 2012 08:00:00 EST

Under New Jersey's Domestic Violence Act, a police officer can search and seize any weapons owned or controlled by the aggressor, so as to protect the domestic violence victim. This summer, New Jersey’s Supreme Court received arguments on a question as to whether weapons seized as a result of a domestic violence search could be used to prosecute an individual under various sections of the criminal code prohibiting possession of certain weapons. In that case, a boyfriend was charged with domestic violence, and as a result of the search that followed, the investigating police officers located an assault rifle and two handguns. The assault rifle was illegal and one of the handguns was found to be stolen. An indictment later issued.

The defendant filed a motion to suppress the seizure of the weapons. At the trial level, the court granted the motion on the basis of a Supreme Court decision rendered in 2007. On appeal, the Appellate Division determine that the assault weapon should not have been suppressed because it was in plain view while the police were legitimately at the defendant’s home, as a result of the domestic violence investigation. The court also concluded, however, that the handgun had to be suppressed because the police had no authority to conduct a serial number search of that weapon.

Drug/Criminal Attorney in Bergen (Hackensack), Passaic (Paterson) and Morris (Morristown) Counties: Drugs Found in Proximity to Defendant Subject of a Terry Stop not in Violation of of Law

Tue, 31 Jan 2012 08:00:00 EST

In a recent Appellate Division decision, the court addressed the propriety of a search resulting from a Terry-Type-Stop. In that case, law enforcement agents were called to a specific location on the basis of an anonymous tip that the suspect had a weapon. During the investigatory stop the suspect became recalcitrance, and as a result, he was arrested. Thereafter, a collection of glassine bags containing heroin was found on the ground in and about where the suspect stood at the time of his arrest. Defendant complained that the seizure was illegal.

In analyzing the issue, the court first noted in passing that a suspect’s resistance to a Terry-Stop may constitute interference with the performance of a police officer, and as a result an arrest may be justified. The panel did not rely upon that proposition, however, but concluded that during the suspect’s stop under Terry, he could have been detained for a brief period to allow the police to the search area where he was standing to determine if he had discarded a weapon or drugs.

Drug/Criminal Attorney in Bergen (Hackensack), Passaic (Paterson) and Morris (Morristown) Counties: The Use of Lay Opinions in Drug Cases

Mon, 30 Jan 2012 08:00:00 EST

For many years, the Supreme Court in New Jersey has allowed the government to use expert witnesses in the prosecution of drug cases. The underlying principle of that decision was that there are many components of the drug trade that are beyond the understanding of the average citizen. Thus, in the case of State v. Odom the Supreme Court determined that a police officer, qualified as an expert witness, was allowed to testified that the drugs seized from a person was for purposes of distribution, as opposed to personal consumption. Over the years, the underlying core of the Odom case has allowed expert law enforcement agents to testify about the various methods of drug distribution and the roles played by various participants. In March of 2011, the Supreme Court addressed the question as to whether a police officer who was not qualified as an expert could offer a lay opinion relating to a drug investigation.

In that case, the investigating police officer observed defendant engaged in a number of transactions, where another person approach defendant and participated in brief conversations. Thereafter, defendant walked into a parking lot, returned and handed the other person small objects. The police officer also saw what appeared to be an exchange of money. As a result of these observations, the police officer made an arrest, and then searched defendant’s vehicle where he found packages of drugs on the passenger side of the vehicle. The defendant also had $384 on his person.

The trial court allowed the investigating police officer to testify as to whether he believes the observation that he saw related to a drug transaction. The Supreme Court reversed the decision and concluded that a lay opinion under those circumstances was not acceptable. One of the reasons for the ruling was that the jury was competent to reach the same conclusion without the investigating police officer opinion.

Drug/Criminal Lawyer in Bergen (Hackensack), Passaic (Paterson) and Morris (Morristown) Counties: The Use of Anonymous Tips in Investigative Stops

Wed, 25 Jan 2012 08:00:00 EST

Over 40 years ago, the Supreme Court in a case titled Terry v. Ohio, concluded that a police officer could stop a person to investigate the prospects of criminal behavior, even if there is no probable cause. In that case, the court said that the police officer could also pat down a suspect to determine if the suspect was armed. The standard for both the investigative stop and the pat down was "objective reasonable suspicion.” For quite sometime now it has been determined that information given to law enforcement agents by an unknown informant could not create “objective reasonable suspicion.”

Recently, an Appellate Division panel in New Jersey, revisited that issue. In that case, the police officer received an anonymous tip that an individual wearing a green jacket with a hood had a handgun in a specific area in Asbury Park. As a result of this information, the police officer made an investigatory stop. When the subject put his hand in his pocket other police officers drew their guns. After the subject refused to remove his hand from the pocket the suspect was arrested and handcuffed. While a search of the person of the defendant did not determine a weapon a significant collection of glassine bags filled with heroin were found in the area where defendant was initially encountered. The issue before the court, among others was whether the investigatory stop was legitimate.

In addressing the issue, the court looked to a collection of decisions rendered in the federal courts, where it was determined that an anonymous tip relating to people who were believed to have weapons was sufficient to justify an investigatory stop and frisk under Terry v. Ohio. Grounded upon these cases, the court determined that the stop and subsequent arrest of defendant was lawful. In short, the court distinguish anonymous tips involving weapons versus drugs and found that the danger associated with weapons was such that an anonymous tip would suffice.

DRUG/CRIMINAL DEFENSE ATTORNEY IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: TORT CLAIM NOTICE TIME BEGINS TO RUN IN A CRIMINAL CASE AFTER THE UNDERLYING CASE IS FINALLY ADJUDICATED

Wed, 28 Dec 2011 08:00:00 EST

In 1999, an individual went on trial for drug-related offenses. During the trial, his attorney, a public defender, sought to discredit a witness's identification by having the defendant change his clothes with his brother. During the process, a court officer saw the men changing clothes. The ploy was presented to the jury during defendant’s cross examination in an effort to discredit defendant's credibility. Defendant was ultimately convicted and received a 14 year term of imprisonment.

The case was later reversed on a Post-Conviction Release Petition, where the Appellate Division determined that the lawyer's conduct was unethical and that her advice had seriously undermined the defendant's credibility before the jury. At this point, defendant had served his six-year period of parole ineligibility and was released from prison. The Cape May prosecutor did not agree to dismiss the indictment until many months later.

A few months after the dismissal of the indictment, defendant filed a civil action against the Public Defender's Office. Shortly thereafter, the Public Defender's Office sought to dismiss the complaint, contending that defendant had a responsibility to file a tort claim notice within 90 days after the reversal by the Appellate Division. At the trial level, the public defender had the case dismissed based on this contention. That contention was later affirmed by the Appellate Division.

A few weeks ago, the Supreme Court disagreed and determined that the dates that were relevant for purposes of determining when a tort claim notice should be filed would begin to run from the date when the prosecutor's office agreed to dismiss the indictment. Up to that point, the Supreme Court said, defendants jeopardy was still open.

DRUNK DRIVING/DWI ATTORNEY IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: NEW LEGISLATION PENDING REFUSAL WARNING CASES

Tue, 27 Dec 2011 08:00:00 EST

A few years ago a Hispanic speaking driver was arrested and taken to police headquarters where he was asked to participate in a breath test. Consistent with relevant legal principles, the investigating police officer was required to read to the driver various instructions and warnings required by New Jersey’s Supreme Court. Unfortunately, the police officer who made the arrest, read the warnings to the driver in English which the driver did not understand. Ultimately, the driver was convicted of refusing to participate in a breath test. He appealed that decision, contending that the government had a responsibility to read to him the refusal warnings in Spanish. The Appellate Division, which ultimately heard the case rejected the driver’s argument. The case was taken to New Jersey Supreme Court. There the court determined that under the circumstances, the driver had the right to have the warnings read to him in Spanish.

New Jersey's legislators are now tinkering with the Supreme Court decision by proposing a new statute, which will allow for a refusal arrest and conviction, even if the putative drunk/DWI driver does not understand English. The sponsor of the legislation said that the new measure simply highlights the notion that when a person obtains a drivers license in the state he acknowledges that a refusal of a breath test maintains serious penalties. Opponents to the proposed legislation says that the legislation creates a "due process dead-end”.

DRUG/CRIMINAL ATTORNEY IN BERGEN (HACKENSACK), PASSAIC (PATERSON), AND MORRIS (MORRISTOWN) COUNTIES: CURRENT POLITICAL VIEWS ON MARIJUANA USE

Fri, 16 Dec 2011 08:00:00 EST

Here are the attitudes maintained by other potential presidential candidates on the use of marijuana/pot.

Newt Gingrich (R) – In 1982, this former House speaker advanced the medical marijuana cause in this country. During his reign in Congress, however, he instigated some legislation that would create the penalty of death for anyone smuggling over 2 ounces of pot across the border.

Herman Cain (R) – This candidate, a former ad executive for a pizza company has previously stated that he thought a state should have the right to make decisions on medical marijuana use. During a recent press conference, however, he refused to directly answer questions as to whether he was in support of medical marijuana laws.

Rick Santorum (R) – This former senator from the Keystone state has declared that he would use the federal government to quash medical marijuana legislation in any state. It is also said that medical marijuana laws is "an activity that is not consistent with American values.".

Jon Huntsman (R) – This former governor from the state of Utah and a former ambassador to China has vowed that he would allow states to decide medical marijuana legislation. A Mormon, Huntsman has said he has never used marijuana/pot.

DRUG/CRIMINAL DEFENSE ATTORNEY IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: CURRENT POLITICAL VIEWS ON MARIJUANA USE

Thu, 15 Dec 2011 08:00:00 EST

Marijuana/pot use in the United States seems to an be identifiable political plank in the upcoming presidential election. Here is a short analysis of some of the presidential candidates thoughts on this issue:

Barack Obama (D) – In his first campaign election. Obama seemed to have a rather progressive attitude about the use of marijuana/pot. Initial perception aside, his administration has now become rather active in using federal agents to raid medical marijuana dispensaries in various states including California, Colorado, Michigan, and Montana.

Rick Perry (R) – The current governor of Texas is dead set against legalizing marijuana use. He has said, however, that he would support a state’s rights to implement legitimate medical marijuana legislation and that the federal government should not intervene with that decision.

Michelle Bachmann (R) – This candidate is highly touted with the Tea Party. To date, she has yet to declare a position on the topic of medical marijuana. In the summer, she ignored an on camera question relating to medical marijuana use.

Ron Paul (R) – This candidate also opposes the legalization of marijuana, but supports a state’s right to enact medical marijuana laws. At one point, he even compared the crimminalization of marijuana/pot use to Prohibition.

Mitt. Romney (R) – During the presidential election process in 2008. Romney said. "I don't want marijuana to be used in our country." His is also an avid opponent of medical marijuana statutes and significantly encourages the federal government to intervene in those states where it use had been permitted.

MARIJUANA/POT ATTORNEY IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: FEDERAL GOVERNMENT LIMITS MEDICAL MARIJUANA IN PATIENT'S ABILITY TO PURCAHSE FIREARMS

Thu, 15 Dec 2011 08:00:00 EST

This September, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) sent a directive to gun dealers throughout the country, prohibiting them from selling firearms to anyone who uses marijuana/pot, including medical marijuana patients authorized under state legislation. As a result of this governmental instruction, a buyer must note on a new ATF form whether he/she uses marijuana/pot. Even if the applicant answers the question "no" a dealer can still refuse to sell a firearm if there is "reasonable cause to believe that the purchaser is using or addicted to a controlled dangerous substance.” Apparently, this directive was the product of gun dealers who were seeking advice as to how to deal with customers who used medical marijuana cards in the identification process needed to purchase firearms.

The directive has produced an avalanche of controversy among marijuana/pot users, gun advocates and even members of government. One government agent complained that the memo should have been influenced by thoughts from officials from the states that authorized medical marijuana use. He also complained about the inconsistency of the directive and the current posture of the law that allows prescription drug user to buy firearms. Still others have complained that dealers do not have the capabilities to know when someone is smoking pot or addicted to drugs.

DRUG/CRIMINAL DEFENSE ATTORNEY IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES SUPREME COURT REVIEWS SCOPE OF RAPE SHIELD LAW IN SEXUAL ASSAULT CASE

Wed, 07 Dec 2011 08:00:00 EST

A defendant convicted of sexually assaulting a young girl has asked the Supreme Court to test the boundaries of New Jersey's Rape Shield Law. In that case, defendant dated a woman who was anonymously identified in the indictment as "Carol" under circumstances where defendant would care for Carol’s young daughter, while she worked nights. Sometime in 2001, the relationship between defendant and Carol ended. In March 2003, Carol discovered instant messages on her daughter's phone that were sexually charged. In the discussion that followed, the daughter claimed that defendant had touched her inappropriately when she was nine years old. She also said that he exposed himself on a number of occasions.

During the trial, defendant sought to convince the trial judge to allow him to place into evidence IM transactions found on the victim’s phone that were sent to 16 separate men. Defendants proffer to the trial court was that these IM's affected the victim’s credibility and her motive to make a false accusation. In essence, defendant claimed that the girl was embarrassed by her mother's discovery that she was sending inappropriate IM’s and concocted a story to free herself of the embarrassment. Initially, the trial judge rejected defendant’s proffer and later reconsidered by allowing the defense to refer to seven of the IM transmissions; one of which related to the girl’s referral to masturbation.

The defendant was ultimately convicted. That conviction was affirmed by the Appellate Division. Oral arguments were received by the Supreme Court in early November 2000.

DRUG/CRIMINAL DEFENSE ATTORNEY IN BERGEN (HACKENSACK), PASSAIC (PATERSON), AND MORRIS (MORRISTOWN) COUNTIES: NEW JERSEY LAWYER IDENTIFIED IN FEDERAL RICO INDICTMENT

Tue, 06 Dec 2011 08:00:00 EST

A Cherry Hill lawyer who represented a mob figure in a prior criminal prosecution was named in a federal RICO indictment unsealed in Newark in early November.

The core of the criminal scheme related to the mob figure’s effort to infiltrate a legitimate public company with threats of coercion made against the company's board members to the extent that they resignED their position. Shortly thereafter, new board members were appointed. Immediately after the new board was appointed, A Texas lawyer was engaged as special counsel where his compensation was fixed at $100,000 per month.

The New Jersey lawyer's role in the scheme related to his efforts to cover-up the mob figure’s role in the takeover and his constant contact with other individuals previously convicted of serious crimes. The lawyer also concealed the sources of tHE fraudulent income resulting from the scheme which allowed the mobster and another individual to purchase a yacht valued at $850,000, a Bentley automobile and a expensive home.

DRUG/CRIMINAL DEFENSE LAWYER IN BERGEN (HACKENSACK), PASSAIC (PATERSON ) AND MORRIS (MORRISTOWN) COUNTIES: OCTOGENARIAN SUES OCEAN COUNTY PROSECUTOR FOR MURDER CONVICTION REVERSED BY THE FEDERAL COURT BECAUSE OF PROSECUTORIAL MISCONDUCT

Mon, 05 Dec 2011 08:00:00 EST

In 1988, Anthony Alongi was convicted along with others for the murder of two people involved in a drug transaction. The government contention in that case was that Alongi and others arrange the purchase a significant quantity of cocaine from the couple. Instead of making the payment, however, Alongi and his co-defendants killed the couple and tossed their body into Barnegat Bay. Although the jury convicted him and some of his co-defendants, the trial court reversed that conviction, citing insufficient evidence. The government took the case to the Appellate Division, where the conviction was reinstated. Thus began a long, torturous appellate process. Ultimately, the case found its way to the Third Circuit, which ordered the release of Alongi and his co-defendants because of prosecutorial impropriety.

In early November, Alongi filed a lawsuit against various members of the Ocean County prosecutors office some of its investigators and the lawyer that prosecuted the case for the government, claiming that they suppressed important evidence and secured false testimony from a material witness.

DRUG/CRIMINAL DEFENSE ATTORNEY IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: DEPORTATION CONSEQUENCES IN PLEA ARRANGEMENT RETURNED TO THE SUPREME COURT

Wed, 30 Nov 2011 08:00:00 EST

In State v. Nunez Valadez, the New Jersey Supreme Court determined that the advice given to a defendant with respect to the potential of deportation was insufficient and, as a result, defendant was allowed to retract his guilty plea and that was so, even though the plea form required the defendant to answer a question as to whether he realized that a plea "may" lead to deportation. Later in 2010, the United States Supreme Court in a case titled, Padilla v. Kentucky concluded that a defendant who offered a guilty plea without specific advice of the consequences of deportation was deprived of the Sixth Amendment right to effective assistance of counsel.

Today, New Jersey Supreme Court is again grappling with the question of whether inappropriate advice as to deportation consequences resulting from a guilty plea should be applied retroactively. On this issue, the government argued that the Nunez Valadez/Padilla decisions should not be applied retroactively, because both courts created a new principle of law and, to that extent, retroactive application was not possible. The defense, on the other hand, contended that in the Padilla decision, Justice John Paul Stevens noted rather pointedly that the court was applying a principal that was grounded upon "professional norms" that dated back as far 1999. The defense also argued that the Court should endorse the Appellate Division’s decision to apply the rule retroactively.

MARIJUANA/CRIMINAL DEFENSE ATTORNEY IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: CAN MEDICAL MARIJUANA BE USED IN THE WORKPLACE?

Tue, 29 Nov 2011 08:00:00 EST

In July of this year, Governor Chris Christie declared that he would make immediate effort to implement the New Jersey Compassionate Use Medical Marijuana Act (Act) as quickly as possible. In one of the Act’s provisions it is said that the legislation cannot be construed to require an employer to accommodate the use of medical marijuana in workplace. This provision of the Act seems to clash head-on with New Jersey's Law Against Discrimination (LAD), which requires employers to make reasonable accommodation for people afflicted with disabilities. Under LAD the term disability is broadly construed. This legislative confrontation poses the question as to whether an employee can terminate an employee afflicted with a condition defined by the Act, where the employee uses marijuana/pot in the workplace or comes to the workplace under the influence of marijuana/pot.

Although the courts in New Jersey have not had to reckon with the question because the practical application of this Act has not been put into effect, other jurisdictions have. In those jurisdictions, the courts have determined that an employer can terminate an employee for the use of marijuana in the workplace. Those states are California, Michigan, Oregon and Washington.

DRUNK DRIVING/DWI IN BERGEN (HACKESACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: THE USE OF FORCE IN EXTRACTING BLOOD IN A DRUNK DRIVING CASE

Fri, 18 Nov 2011 08:00:00 EST

In most states, the government will use various forms of scientific testing to establish the blood-alcohol concentration (BAC) of a drunk driving/DWI suspect. Those test may be in the form of a breath test, blood test or urine test. In those cases where a blood test has been conducted a defendant may contend that under the circumstances, the taking of blood was unreasonable because excessive force was used.

In this regard, it has been long stated that the use of unreasonable force in the execution of a search warrant or an arrest warrant is unconstitutional. In 1966, the United States Supreme Court in a case titled California v. Schmerber addressed the question whether the government could take blood from a suspect in a criminal investigation. While the court endorsed the procedure it specifically concluded that the taking of blood cannot be countenance in all circumstances, and cautioned that the government should be leery of taking blood if the subject was fearful, and if the procedure offended religious considerations. It also said that under no circumstances could unreasonable force be used.

In 2001, New Jersey’s Supreme Court tested that principle in a drunk driving/DWI case where defendant was terrified of needles, and where during the blood taking process, shouted and flailed to the extent that he had to be mechanically restrained. In addition, defendant in that case was not offered to participate in a breath test. Given the circumstances, the court reversed defendant’s conviction because of the government’s excessive force.

Last month, an appellate panel affirmed the conviction of a drunk driving/DWI suspect, where the suspect’s BAC was established by an analysis of his blood. In that case, defendant argued that excessive force was used to draw his blood and that he should have had a opportunity to participate in a breath test while at the hospital where he was being treated for his injuries. On these issues, the court said that although there was a "minimal" use of force, it was not unreasonable given the circumstances. It also concluded that under the special facts of the case, the government had no responsibility to offer a breath test at the hospital.

DRUNK DRIVING/DWI IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: WHO HAS THE BURDGEN OF PROVING A DEFENDANT'S CLAIM A SPEEDY TRIAL CLAIM?

Tue, 15 Nov 2011 08:00:00 EST

The right to a speedy trial is constitutionally protected. That constitutional principle applies in drunk driving/DWI cases. Last month, an appellate panel addressed the question of whether the government or defendant had a responsibility to prove a contention that defendant driving drunk/DWI should be dismissed because defendant was denied his right to a speedy trial.

In that case, a New Jersey State Trooper stopped defendant while driving from Atlantic City to her home in Maryland because of a traffic violation. Thereafter, defendant was arrested for drunk driving/DWI. During the arrest process, defendant was obstreperous and kicked the State Trooper. Ultimately, she had to be subdued with Mace. The incident produced a criminal prosecution, which apparently resulted in a indictment because of the assault on the Trooper, as well as a drunk driving/DWI complaint.

The delay between arrest and conviction of the drunk driving/DWI case was almost 48 months. The bulk of that delay was grounded upon the time necessary to resolve the indictment. After her conviction, defendant appealed her drunk driving/DWI conviction contending that she was deprived of her speedy trial right as defined by the United States Supreme Court in Barker v. Wingo.

In its opinion, the Appellate Division, first addressed the question of who had the responsibility to prove various elements under the Barker v. Wingo test, and who had the responsibility to present an appropriate an approximate record. In this regard, the court concluded that some of the factors under Barker case had to be established by the government and others had to be established by the defendant. More importantly, the court said that, where as here, there are two prosecution, one in the Municipal Court and the other in the Superior Court, the records from both courts had to be produced.

Continuing, the court refused to reversed the conviction relying upon the trial court's decision that the delay in the indictable offense had been influenced by defendant’s lawyer’s unavailability and defendant’s illness. Indeed, on several occasions, a bench warrant had to issue to secure her presence at trial. The court also observed that defendant had not asserted her speedy trial right either in the Municipal Court or the Superior Court and further that there was no demonstrable prejudice, which was an issue that should have been developed by defendant.

CRIMINAL/DRUG ATTORNEY IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: IS PROBABLE CAUSE FISH OR FOUL?

Mon, 14 Nov 2011 08:00:00 EST

While it has been said, time and time again, that probable cause does not lend itself to a precise definition, it has been noted that the concept deal with probabilities influenced by the totality of the circumstances. In a case titled State v. Chippero, the Supreme Court decided to determine whether the probable cause needed to conduct a search requires the same proofs for an arrest.

In that case, defendant was charged with the homicide of a neighbor. About the time of the killing, a disinterested third-party observed defendant in the vicinity of the victim’s home where defendant appeared to be “sweaty” and “clammy”. As a result of this information, the government obtained a search warrant of defendant's trailer. He was later arrested. Nine hours after he was given his Miranda rights, he admitted to raping and murdering the victim. Defendant was ultimately convicted. The case was appealed and ultimately found its way to the Supreme Court. There the Court reversed the conviction because the confession was faulty. Notably, defendant did not challenge the search warrant on his appellate journey. Moreover and perhaps more importantly, during oral arguments before the Court the government admitted that it did not have probable cause to arrest defendant.

At the second trial, defendant sought to suppress the evidence seized as a result of the search warrant. The defendant's argument was that since the government conceded there was no probable cause to arrest there could be no probable cause to search. While the trial court rejected this contention, the Appellate Division endorsed its validity and reversed defendant’s conviction. Again, the case went to the Supreme Court.

Ultimately, the Supreme Court reinstated the defendant’s conviction. In rendering its decision it observed that although probable cause had the same standard for both a search and an arrest, the factual elements of the search are different from the factual elements of an arrest. Specifically, it said that the factual predicate for an arrest is whether a crime had been committed and if the arrestee committed the offense. The factual predicates for a search, however, is merely whether contraband or evidence of a crime could be found in a particular place. Continuing, the Court concluded that the government had probable cause to effectuate the search warrant

DRUG/CRIMINAL ATTORNEY IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: TRIAL COURT'S EFFORT IN EXAMINING WITNESSES REQUIRES A REVERSAL

Fri, 11 Nov 2011 08:00:00 EST

The law has long recognize that the influence a trial judge can have on a jury. As a result the law has sought to circumscribed the ability of a trial judge to examine trial witnesses. In that regard, it has said that trial judges have the discretion to intervene in criminal trials and question witnesses when necessary, where the someone’s rights are being infringed, where the case need to be expedited to conserve judicial time and resources and where further questioning is required to clarify testimony. This prerogative however, is limited so as to make sure that a trial judge does not signal any preference for one side or the other. Thus, the trial court should not be impatient, interfere with testimony or examine a witness with a "severe attitude".

This rule of law was recently addressed in a case involving a first-degree murder trial where a son killed his mother and stepfather. The defendant sought to justify his conduct by establishing a diminished capacity defense, based on his depression and drug addiction. During the course of the trial, the judge repeatedly asked defendant whether he "remembered" various aspects of the events associated with the night of the murder. Defendant responded in the affirmative to many of these questions When defendant’s expert testified the judge examined him and established that defendant told him that he had no recollection of the events that occurred that night. In addition, the judge actively participated in the examination of defendant’s, toxicologist who said that defendant was under the influence of marijuana at the time of the murder. The line of examination put to this witness was conceived to impugn a central proponents of this witness’s testimony.

On appeal to the Supreme Court, the Court reversed defendants conviction. In rendering its decision, the Court noted that the trial judge cannot give "the slightest indication" that he favors the government's case. Nor, can he suggest disbelief of defendant’s version of the event. Moreover, while the trial judge sought to justify its conduct by telling the jury that he sought only to clarify various points of the witnesses testimony, the Court determined that the nature of his questions was such as to signal impartiality.

CRIMINAL/DRUG ATTORNEY IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: ISSUES RELATING TO AUTOMOBILE STOPS REQUIRE A HIGHLY SENSITIVE FACTUAL ANALYSIS

Mon, 07 Nov 2011 08:00:00 EST

Automobile stops and searches that result from these stops have been subject of extensive controversy. In a case decided in 2007, the Appellate Division provided an in depth analysis of the issue.

In the case subject the court's decision, four people were stopped in a motor vehicle because the vehicle did not have an inspection sticker and the windows were tinted. One defendant was the driver. The other a front seat passenger. The passenger’s young daughter and her mother were in the backseat. After the stop, it was established that the driver did not have a driver’s license or proof of registration. The investigating officer then separated the driver and the passenger and began an interrogation of both at different times. The officer sought to explore where defendants lived, where they were going, the owner of the vehicle and various other academic bits of information. The information he received from the two defendants was inconsistent. Moreover, at one point, the driver said that they had smoked marijuana/pot in the car earlier. A search of the vehicle disclosed drugs/CDS in a false bottom of a can. The defendants were charged and the case proceeded to a motion to suppress evidence where defendants claimed that the stop and resulting search was illicit. The motion was unsuccessful. The issue was taken to the appellate court.

The court started its analysis by noting that a detention resulting from a motor vehicle stop, even for a brief time, is a "seizure" contemplated by the Fourth Amendment. In order for the government to justify such a stop, the investigating police officer had to show, among other things, that there was probable cause to believe that a traffic offense occurred. Once the stop is justified, routine questions of the vehicle's occupants could be appropriate. The questioning, however, cannot be accusatory; nor, can it be designed to obtain incriminating information. Indeed, it must be "minimally intrusive". Some of the facts that can be used to determine whether an investigatory detention or automobile stop becomes impermissibly custodial is the length of time of the investigation, whether the police officer's conduct was capable of developing fear or anxiety and whether the suspect was isolated.

In this case, the court determined that the inconsistent information provided by defendants, the driver’s lack of driver’s license, her admission relating to the use of marijuana/pot, and her nervousness was such as to allow for a reasonable extension of the investigatory detention. In addition, the court determined that the 26 minute stop was not an inordinate delay. On this issue, the court looked to decisions in the federal courts, which upheld stops where the interrogation lasted 75, 60, 50 and 45. Finally, the court observed that the police officer decision to use drug sniffing dogs did not produce a coercive environment. Resultantly, the court rejected defendant’s appeal.

CRIMINAL/DRUG ATTORNEY IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: INVESTIGATING POLICE OFFICER MAY USE HEARSAY IN LIMITED CIRCUMSTANCES

Thu, 03 Nov 2011 08:00:00 EST

In this state, it has been established for quite sometime that an investigating police officer can use hearsay declarations to explain to a jury the reasons why he/she approached a subject or visited a crime scene. The reason behind the rule is to establish that the acts of the police officer were not arbitrary or to explain post-investigation conduct. Thus, a police officer can testify that a tip from an informant precipitated the police officer’s decision to visit an address or to approach a specific suspect. In the case that initially created this principle the court said, rather clearly, that this type of hearsay information should be preceded by the phrase "upon information received on not from a tip from an informant". That court also said that it is improper to make a statement that suggests that the third-party source gave the officer evidence of the suspect’s guilt.

In a decision rendered this month, an appellate court was required to test the testimony of an investigating police officer involving the distribution of drugs/CDS case, where the police officer testified that he came to the site because there were "numerous complaints from residents about open-air narcotics trafficking," and that he knew one of the actors because of "prior contacts in the community." The appellate court rejected defendant’s contention that these comments were improper. The panel concluded that the statements appeared to be innocence and were not conceived to create the suggestion of criminal activity or to imply that the actor was a criminal.

CRIMINAL/DRUG ATTORNEY IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: PROSECUTOR'S "WAR ON DRUGS" COMMENTS IN OPENING AND CLOSING IS NOT SUFFICIENTLY PREJUDICIAL TO REQUIRE A REVERSAL

Wed, 02 Nov 2011 08:00:00 EST

At times, the trial of a criminal case is a veritable battleground where emotions are extremely high. Sometimes, the government's attorney will say things in their opening and closing statements that are rather incendiary. On this issue, the courts have consistently concluded that a prosecutor has "considerable leeway" in the arguments presented to the jury in their opening and closing comments. Indeed, it has been said, time and time again, that these arguments may be both "vigorous and forceful". Where, however, the prosecutor’s closing or opening comments are so off-line that they can virtually affect a defendant’s ability to obtain a fair trial the law will intervene. The standard in assessing the propriety of a prosecutor's comments is whether they were "clearly and unmistakably improper" and whether they are capable of "substantially prejudicing defendant’s fundamental right to a jury trial”. In assessing this standard, court’s will look to whether timely objection was placed on the record; whether the remarks were quickly withdrawn; and, whether the court provided sufficient instructions to preserve the issue.

In prior cases, appellate courts have determined that a “call to arms” argument in closing comments is improper. This type of theme is one where the government requested jury to "send a message" to criminals or signal that the community "will not tolerate distributors and sellers of" drugs/CDS. On other occasions, appellate courts have reversed cases where a prosecutor attempted to validate the credibility of the witness, or offer an opinion about the defendant's guilt where the suggestion is that he/she knows something beyond the evidence presented at trial.

In a recent case, a prosecutor made repeated references to the “war on drugs”, both in his opening and closing comments. On appeal, the defendants sought a reversal of his distribution of drugs/CDS conviction because of these comments and pointed the court to a case titled State v. Holmes where a prior appellate panel reversed a conviction because of the prosecutor’s use of the term "war on drugs" in his summation. This appellate panel, however, rejected defendant’s contention on the issue. In analyzing the question, the court first observed that defense attorney did not object to the comments at any time during the trial. Next, it commented on the overwhelming evidence against defendant. Finally, it noted that the "war on drugs" concept was first broached in the text of a jury questionnaire used in the jury selection process.

DRUG/CRIMINAL ATTORNEY IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: QUALIFIED EXPERT IN DRUG PROSECUTION MAY NOT OFFER AN OPINION AS THAT THE EVENTS HE OBSERVED WERE OF AN "ILLEGAL NARCOTIC TRANSACTION" UNDER CERTAIN CIRCUMSTANCES OF THE CASE

Wed, 02 Nov 2011 08:00:00 EST

The law in New Jersey has allowed the government to use expert witnesses to explain the nuances of drug transactions for a good number of years. In 2003, the Supreme Court in a case titled State v. Summers, endorsed the conviction of a defendant convicted of possession with intent to distribute a drug/CDS where an expert witness testified that defendant was in possession of drugs/CDS for purposes of distribution and not for his own personal use. Later in 2005, an appellate panel in a case titled State v. Boston, held that a qualified expert in a drug case, could not testify that in his opinion the transaction between defendant and a third-party was an the illegal narcotics transaction. These seemingly inconsistent rulings were influenced by the special facts of each case.

In the Boston case, investigating police officers observed defendant talk to a third-party. After the conversation, defendant went to an another individual and obtain some packages, returned to the third-party, who gave defendant some money. At the time of defendant’s arrest, she was not in possession of any drug/CDS and had a limited amount of money. Later, the investigating officers found a bag with a significant quantity of drugs/CDS in the area where defendant received the packages from the other individual. Notably, these packages of drugs/CDS had a special stamp on each of them that matched the packaging retrieved from the third-party. At trial, the government's expert testified that what he observed was a "illegal narcotics transaction." The defendant appealed her conviction. The appeal focused on the expert’s testimony.

In analyzing the issue, the Appellate Division distinguished its ruling from the Supreme Court’s decision in Summers by noting that in Summers the defendant was in possession of a rather large quantity of drugs/CDS at the time of his arrest, which was a fact, absent in the case before the Appellate Division. The court also looked to a case titled State v. Baskerville, where another appellate panel determined that it was improper for a government expert to testify that the suspect subject of his observation “was selling narcotics". The court also observed that the question put to the expert in the Summers case was more pointed and direct. Finally, the court determined that although there was sufficient information for the jury to determine that defendant was involved in a drug distribution scheme the government was not entitled to use an expert to "salvageable a potential insufficient case" by providing an opinion that may have presumed facts not in evidence before the jury.

LEGA MALPRACTICE ATTORNEY IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: LAW FIRM SANCTIONED FOR ACCUSING ADVERSARY OF LYING

Tue, 25 Oct 2011 08:00:00 EST

A well-known and well-received New Jersey law firm was recently sanctioned for claiming that an adversary produced false testimony in a lawsuit. The law firm represented over 2,000 union members against their former union where it was claimed that the union failed to properly secure the seniority of its members when the employer obtained bankruptcy protection in 2001.

This summer, a jury determined that the union violated its duty to its members. A second trial on damages is to follow later this year. After the verdict, however, the union requested the trial judge to overturn the jury verdict. In that application the attorney for the union alleged that a member of the law firm that represented the union members arranged for false testimony from five witnesses at trial, and in the process sought to revoke the pro hac vice status of the law firm.

The trial judge labeled the motion frivolous and ordered the union member’s law firm to pay $5,000 in sanction. A member of this law firm said that although the law firm had a high regard for the trial judge they had to "respectfully disagree with this decision."

LIQUOR LAW LIABILITY/DRAMSHIP ATTORNEY IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: TRIAL COURT'S DECISION TO DISMISS PLAINTIFF'S CLAIM FOR FAILURE TO PRODUCE EXPERT WITNESS REVERSED

Mon, 24 Oct 2011 08:00:00 EST

In a case titled Conrad v. Michelle and John, Inc., an appellate panel decided to reverse the trial court's decision to dismiss a plaintiff’s dram shop claim under N.J.S.A. 2A: 2-5 because the plaintiff failed to produce an expert witness at a plenary hearing to determine whether the expert’s opinion was grounded upon reliable scientific principles.

In the case, defendants filed a motion for summary judgment. The core of the motion related with the reliability of the plaintiff’s expert testimony. During the course of oral arguments, the court decided to conduct a plenary hearing under N.J.R.E. 104 to determine whether the methodology used by the expert was acceptable science. This decision was made despite the fact that the defense attorney did not request this type of hearing. Indeed, the defense attorney readily recognize that the expert who he had work with in the past, has had his testimony admitted other cases. Moreover, the propriety of the expert’s methodology was not part of defendant’s arguments in support of defendant’s the motion for summary judgment.

Notwithstanding, the trial court continued to press for the plenary hearing. The hearing was adjourned at plaintiff’s request on two separate occasions because of the unavailability of the expert. A third hearing was scheduled and when the plaintiff could not produce the expert because of his schedule, the trial court dismissed the plaintiff’s claim.

The appellate court reversed the trial judge's decision, noting that a lesser sanctions were available. It also observed that it was rather peculiar for the trial court to demand a plenary hearing when the defendant had not.

LEGAL MALPRACTICE ATTORNEY IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: NO DUTY OWED TO POTENTIAL BENEFICIARY UNDER STEP-MOM'S WILL WHOSE INTEREST ARE ADVERSE TO DECENDENT'S ESTATE

Thu, 20 Oct 2011 08:00:00 EST

The Appellate Division recently decided a case addressing the duty of a lawyer to identify a step-son as a beneficiary under the step-mother’s estate.

In that case, the step-mother engaged a law firm to draft her will, under circumstances where she was diagnosed with terminal cancer. During the initial interviews, the step-mother voiced concern about identifying her step-son as a beneficiary under the will because of his substance abuse and fear that his interest in the estate would be consumed by his disability and/or employment benefits he was receiving which would have had to be repaid to the government. Ultimately, the step-mother included the step-son in the Will as one of the four beneficiaries to her estate. Later, the step-mother instructed the law firm to remove the step-son from the Will and, as a result, the law firm created a second Will disinheriting the step-son. The lawyer in the law firm who prepare the will and saw its execution said that the step-mother was clear and lucid in her instructions and that she executed the will without outside influence.

The step-son then contested the will seeking to establish a constructive trust. Ultimately, the claim was settled.

Later, the step-son sued the attorney who prepared the second Will and another lawyer who the step-son claimed failed to advise him that he had a malpractice action against the law firm. The case was ultimately dismissed on the law firm’s motion for summary judgment. On appeal, the court said that ordinarily an attorney drafting a will has only a duty to the testator unless there was some special duty to a beneficiary. The court also said that the step-son interest was inconsistent with the interest of the estate and contrary to the step-mom’s manifested intention in the will and therefore the law firm had no duty to the step-son.

CRIMINAL/DRUG ATTORNEY IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: ARRESTING OFFICER CANNOT OFFER AN OPINION AS TO WHETHER DEFENDANT'S POSSESSION OF DRUGS WAS WITH THE INTENT TO DISTRIBUTE

Wed, 19 Oct 2011 08:00:00 EST

It has been well settlement in this jurisdiction that the government can offer the testimony of an expert witnesses in drug prosecutions. The basis of that principle of law is that the average citizen sitting in the jury box, cannot fully appreciate the sophisticated and sometimes secret nuances of drug trafficking. Consequently, the courts have allowed expert witnesses to testify about the difference between drugs in the possession of another with intent to distribute versus possession with intent to use. Experts can also disclose to a jury the methods of drug distribution as well as the various roles that people play on street-level distribution environment. Courts have recognized, however, that testimony of this type can have a prejudicial effect on the outcome these types of case and have consistently warned that these experts must steer clear of opinions on the ultimate issue of guilt. Other times, it has been observed that the risk of prejudice significantly advances when the expert is the investigating police officer.

Recently, the Appellate Division addressed an issue relating to this body of law. In that case, a patrolman observed a motorist operating a motor vehicle under circumstances where the patrolman believe that the operator was wanted for outstanding warrants. Resultantly, the police officer stopped the motorist, conducted a further investigation and perfected in arrest. During that process, the defendant dropped a package on the ground and kicked it under the car. The package was retrieved and found to contain four individually wrapped packages of heroin.

At trial, arresting police officer testified that in his opinion the defendant was in possession of the CDS with intent to distribute. The core of his testimony was that in his experiences heroin addicts general use only two bags of the drug.

On appeal, the court reversed the conviction because it concluded that the investigating police officer was not qualified as an expert. Indeed, the court noted that the police officer had limited formal law-enforcement education and on-the-job training.

MARIJUANA/DRUG ATTORNEY IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: THIS AND THAT

Fri, 14 Oct 2011 08:00:00 EST

It appears that Apple iPhone users can obtain an application that will display an image of a blunt with a smoldering cheery on the screen. The application is called iBlunt. If you blow into the phones mic, smoke appears on the screen. If you shake the phone you can flick the ash from the blunt. The government is asserting pressure on Apple to do away with the application because it "promotes illegal conduct." The owner of the application Gold Mind Application contendS that this official effort violates the First Amendment.

A company in Seattle known as the Medical Marijuana Delivery System has created a patch infused with THC to be applied to animals afflicted with chronic pain. The patch was initially invented by a member of the Pueblo Indian tribe in New Mexico. The company expects to market the drug patch in states that have establish medical marijuana laws. It expected however, that the legislators of those states will have to amend the statute to include animals.

CRIMINAL/DRUG LAWYER: BERGEN (HACKENSACK), PASSAIC (PATERSON), AND MORRIS (MORRISTOWN) COUNTIES: NEED FOR "WEED PASS" FOR FOREIGNERS IN NETHERLANDS MARIJUANA/POT SHOPS NIXED BY GOVERNMENT

Fri, 14 Oct 2011 08:00:00 EST

The coffeeshop/weed shop industry in the Netherlands has proliferated for years. Although the industry is licensed by the government to ensure that only marijuana/pot is sold at these facilities as opposed to the so-called hard drugs, the industry is not truly legal, but merely tolerated. For that reason, various politicians over the years have sought to restrict the coffeeshop’s business. Recently, a movement has been advanced where tourists from other countries would be required to apply for a "weed pass" as a condition of patronizing the coffee shops. The Prime Minister of the country has made a recommendation to its Parliament to consider the weed pass concept This concept has caused great consternation in the industry because it is thought that business profits will be significantly curtailed.

This summer, the highest court in the country determined that a weed pass would illicitly discriminate against tourists. The attorney for the Amsterdam coffeeshop coalition has recently said, "shops will remain open and continue fulfilling the role that there were establish four, tell all your friends, book a flight and come visit us in Amsterdam, where the coffee shops are open and waiting for you”.

CRIMINAL/MARIJUANA LAWYER IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: THIS AND THAT

Thu, 13 Oct 2011 08:00:00 EST

An actress who appears on a weekly TV program told her personal trainer that she had never consumed marijuana/pot before. The trainer later prepared brownies laced with marijuana/pot and left them in the actresses’ kitchen with a note that said "enjoy". The actress later served the brownies to a number of real estate agents interested in selling her home. Suffice to say, the chocolate goodie caused some consternation for the actress.

Recently, over 20 marijuana/pot plants were detected on property owned by Mia Farrow by law enforcement agents. It appears that the property had been appropriated by a local gardener. Government authorities investigating the grow never considered Farrow as a target and readily believed her claim of ignorance.

In the last six months, a rather famous rapper was arrested twice for the possession of marijuana/pot. The first occurred in New York City. Two weeks later he was arrested again in the state of Georgia as a result of a routine traffic stop.

DRUNK DRIVING/DWI LAWYER IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: PRODUCTION OF DISCOVERY MATERIAL IN DRUNK DRIVING CASES

Wed, 12 Oct 2011 08:00:00 EST

Generally, discovery materials in a drunk driving cases are all of the documents that relate to the investigation of the drunk driving/DWI incident, other documents associated with the use and reliability of the scientific tests usually associated with cases of this nature, as well as the credentials of the person who conducted those test. These documents are called discovery materials because it allows an accused the opportunity to virtually discover all of the information that may relate to the government's case. The law requires the government to produce discovery materials in drunk driving/DWI cases because penalties associated with drunk driving/DWI are severe.

Recently, the Appellate Division was required to address an issue relating to the government's refusal to produce certain documents pertaining to an Alcotest. In that case, the defendant requested certain components of the machine’s database memory. In analyzing the issue, the court returned to the Supreme Court's decision in State v. Chun, and observed that the Supreme Court in that case determined that the government was required to disclose 12 categories of documents referred to as "foundational documents” in the discovery process. These foundational documents, so the Court observed, were critical to allow a defendant the opportunity to challenge the accuracy and reliability of the Alcotest. Although the documents demanded by defendant in the appellate case was not one of these fundamental documents, the court said, there are times when more than the fundamental documents must be provided. In reaching this decision, the court looked to a another case decided by another appellate panel in 2010. In the earlier case, the court determined that the government, if requested, had a responsibility to produce prior results of the Alcotest from the date of its last calibration to the date of defendant's arrest.

EXPUNGEMENT/DRUG ATTORNEY IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: FORFEITURE OF OFFICE STATUTE NARROWLY APPLIED

Wed, 05 Oct 2011 08:00:00 EST

New Jersey’s Criminal Code contains a section that authorizes a sentencing judge to permanently bar an individual from holding public office. This year the Supreme Court addressed a case involving that statute.

In that case, a Huntington County law enforcement agent was charged with a two count indictment involving a first and second degree sexual assault. The victim was intoxicated at the time of the assault and became pregnant as a result of the encounter. A plea agreement allowed defendant to plea to a fourth degree sex offense. The sentence of the trial court barred defendant from ever seeking public office or employment. The case was appealed.

In analyzing the issue, the Court returned to the text of the statute which says that in order for the statute to apply, the criminal conduct had to be "involving or touching on his public position or employment." The court then observed that the offense occurred while the defendant was off-duty on private property, as opposed to public property and involved a person the defendant knew. In addition, the court noted that defendant did not use his public position to influence the encounter.

LEGAL MALPRACTICE ATTORNEY IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: LAWYER RECEIVED REPRIMAND FOR SUING A CLIENT IN AN EFFORT TO BE RELIEVED AS TRIAL COUNSEL

Tue, 04 Oct 2011 08:00:00 EST

This year New Jersey’s Supreme Court reprimanded an attorney who filed a lawsuit against his client to collect unpaid fees in what appeared to be an effort to be relieved as trial attorney for the client.

The defendant represented the client in criminal action involving a murder charge. At one point in the process, the attorney advised the client and his family that his total invoices totaled $50,000. The client’s brother promise to refinance his real property to obtain money to pay the fee. While $20,000 of the fee was ultimately paid by the brother, the cost of litigation continued to escalate. The lawyer then advised the client that unless he was paid he would withdraw as the client’s counsel and file a lawsuit. When the fee was not paid, the attorney filed an action against the client for the fees. As a result, the trial court in the criminal case relieved the attorney from his representation of the client. The trial court also referred the case to the office of attorney ethics.

At the first level of examination, the hearing panel determined that it appeared "readily apparent” that the lawyer filed a lawsuit against the client for the sole purpose of being relieved as the client’s attorney. The panel found the conduct to be "particularly abhorrent.". The Supreme Court affirmed and issued a reprimand. It determined that a lawyer’s access to relief against a client for non-payment of fees was severely limited by the fiduciary relationship that exists between the attorney and client. As a result of this special relationship, the court concluded that an attorney cannot sue an existing client while representing that client in a legal controversy.

CRIMINAL/DRUG LAWYER IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: PTI DENIAL REVERSED BY APPELLATE DIVISION

Tue, 04 Oct 2011 08:00:00 EST

New Jersey's Pretrial Intervention Program (PTI) was conceived to allow certain criminal offenders to participate in a period of probation, so as to avoid a criminal conviction, as well as the uncertainty and anxiety associated with a criminal prosecution. The PTI Program is controlled in large part by the discretionary decision making of both the prosecutor and the Program’s director. If the candidate is rejected by either the director or the prosecutor the candidate can appeal that decision to the trial court. There, however, the court will usually endorse that decision unless defendant can show, by clear and convincing evidence, that there was a gross and patent abuse of discretion. Recently, an appellate panel analyze a trial court's decision to affirm the prosecutor's veto. In that case, the defendant was a 37-year-old college graduate who was incapacitated because of serious neurological problems that required her to live in a special facility and receive daily nursing care. She suffered from anxiety, depression, schizophrenia, seizures and heart problems. She was required to take 24 prescription drugs a day to treat these conditions.

As a result of a tip, an undercover agent managed to purchase marijuana and other drugs from the defendant. She was indicted and charged with a 3rd and 4th degree drug distribution offense. The defendant made an application for the PTI Program. The prosecutor rejected the application relying upon a guideline provision that said, in essence a person charged with the distribution of a CDS is not an appropriate candidate for the program unless they were drug dependent. Resultantly, the prosecutor concluded that defendant was presumptively unable to participate in the Program. That position, however, conflicted with another provision in the prosecutor's written denial which said that the defendant was drug dependent.

The Appellate Division panel looked at the inconsistent position taken by the government, in its rejection letter, and concluded that there was insufficient evidence to find that the defendant was not an appropriate candidate for the Program as a matter of law. It then remanded the case for a plenary hearing.

LEGAL MALPRACTICE LAWYER IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: REPRIMAND FOR LAWYERS WHO INDENTIFIED WIFE AS A BENEFICIARY IN CLIENT'S WILL

Mon, 03 Oct 2011 08:00:00 EST

An attorney in Middlesex County recently received a reprimand from the Supreme Court for drafting a will that made his wife a beneficiary in a $1.3 million estate.

The controversy was first brought to the ethics committee, where the attorney was charged with a violation of a Rule of Professional Conduct that prevents a lawyer for preparing a document that gives a substantial gift to a relative unless the recipient of the gift is related to the client. He was also charged with misrepresentation and conducting his affairs in a way as to prejudice the administration of justice. The last two accusations were grounded upon the committee's perception that the lawyer sought to conceal his role in the incident because of testimony he gave at a deposition.

The ethics committee recommended a five-year suspension. The Disciplinary Review Board determined that a reprimand was a more appropriate sanction because the testator had a remote and strained relationship with her only living heir who was a sister and that the attorney’s wife would have been the likely beneficiary of the testator's estate. The Disciplinary Review Board also found that the lawyer had been deposed in a rather contentious environment and that the transcript which formed the basis of the other two accusations was really an acrimonious joust with words. The Supreme Court endorsed the recommendations of the DRV.

CRIMINAL/MARIJUANA ATTORNEY IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: REQUEST TO RECONSIDER OR MODIFY A SENTENCE

Fri, 30 Sep 2011 08:00:00 EST

A defendant who has been previously sentence can returned to the sentencing court to asked the Judge to reduce or change the sentence. Applications of this nature must be filed not later than 60 days after the judgment of conviction and an appropriate order must be entered within 75 days after the judgement of conviction.

There are various exceptions to this rule which allow a defendant to request a reconsideration of a sentence at "any time" after sentencing. Those exceptions are: (1) a request to change the custodial term into a custodial or non-custodial rehabilitation facility for substance abuse; (2) where the defendant is affected with a serious illness; (3) a joint application by the defendant and the prosecutor; (4) when otherwise authorized by New Jersey’s Criminal Code; (5) a request to correct an illegal sentence; and, (6) changing a custodial term to an intensive supervision program; and (7) where a prior conviction used in the sentence was reversed or vacated.

In those cases where the request is to allow a defendant to participate in an intensive supervision program, the application must be presented to a three-judge panel specially assigned to hear requests of this nature. If defendant is admitted into the program and later defaults a three-judge panel will then have an opportunity to re-sentence that the defendant. It is s also important to know that a request for admission cannot be accepted if there is a parole ineligibility as part of the sentence where the parole ineligibility is mandated by statute.

CRIMINAL/MARIJUANA LAWYER IN BERGEN (HACKENSACK), PASSAIC (PATERSON), AND MORRIS (MORRISTOWN) COUNTIES: MARIJUANA/POT THIS AND THAT

Tue, 27 Sep 2011 08:00:00 EST

A recent magazine poll in an online publication disclosed that 85% of grandparents endorsed the decriminalization of marijuana/pot. Indeed, one segment of this population indicated a strong preference to legalize the substance.

Approximately eight or nine years ago, marijuana/pot proponents requested the government to reclassify marijuana/pot from its Schedule I status which is the same schedule where heroin is listed. Recently, the DEA rejected the proposal. The fight is not over yet. The proponents of the issue expect to take the cause to the federal courts, where they are comfortable that they will be able to show that marijuana/pot has some therapeutic and medical value, and to that extent, it is inappropriate for a Schedule I classification.

As a result of the financial crunch influencing the rest of the country, Philadelphia has decided to curtail some of the expense associated with the investigation, arrest and prosecution of marijuana/pot users. Specifically, it has been agreed that possessory offenses shall be addressed summarily and not as misdemeanors. The accused will have to participate in a three-hour class dealing with the evils of drug use and pay a two hundred dollar fine. The record can be expunged.

DRUG/MARIJUANA ATTORNEY IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: CANADA CHANGES ITS MEDICAL MARIJUANA LAWS

Tue, 20 Sep 2011 08:00:00 EST

Under the terms of Canada's original medical marijuana law, designated patients were able to grow their own marijuana/pot or allow a designated caregiver to cultivate the substance. In June, the government change its stand, and now requires that only licensed cultivators can be authorized to grow marijuana/pot under the statute. The move was influence by the government's perception that the current situation is becoming afflicted with a criminal element, where patients and caregivers are selling the marijuana/pot they grow for designated patients to other third parties.

The government also expects to implement new guidelines relating to the places where medical marijuana/pot may be consumed. The general consensus on this issue is that public consumption will be prohibited.

Finally, the regulations will be changed to allow for people interested in becoming designated patients to be certified directly from their doctors, as opposed to government agent.

DRUG/CRIMINAL ATTORNEY IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: SUPREME COURT MAKES RULING ON THE SEARCH OF A HOME WHERE INVESTIGATING POLICE OFFICERS DISCERN A NOTICEABLE ODOR OF MARIJUANA

Fri, 09 Sep 2011 08:00:00 EST

In a recent case decided by the United States Supreme Court a local law enforcement agents discerned a smell of marijuana/pot emanating from a home. As a result, he knocked on the door. Although no one answered, the police officer heard some "scurrying"in the home, which led him to believe that the occupants were destroying evidence. Resultantly, the police officer kicked down the door and later arrested one of the occupants FOR a drug-related offense.

The Fourth Amendment of the United States Constitution prohibits unreasonable searches and seizures. All warrantless searches are considered to be unreasonable and therefore illicit, unless the government can establish that it's activity fell within one of the well-recognized and well-defined exceptions to the warrant requirement. Historically the Supreme Court has maintain close scrutiny on all Fourth Amendment cases involving the search of a home because of the special protection usually applied to a person's dwelling. In this case, the government sought to justify its conduct under the so-called "exigent circumstances" exception.

In its decision, the court said that a law enforcement agent who knocks on a person's door is doing the same thing that any private citizen may do. When, however, the occupants of a home does not responded to the knock, "the investigation will have reached a conspicuously low point,". In this case, the court said the occupant’s failure to respond along with the scurrying of the occupants in the home produce the exigent circumstances necessary to satisfy the instructions of the Fourth Amendment.

One commentator has noted that although the noise produced by garbage disposal, a trash compactor or toilets being flushed may signal an effort to destroy evidence. The mere scurrying about someone’s home is not quite as compelling.

DRUG/CRIMINAL ATTORNEY IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: MARIJUANA - THIS AND THAT!

Fri, 09 Sep 2011 08:00:00 EST

Federal agents have recently chanced upon a new method of transporting marijuana/pot across the US border from Mexico. Smugglers are now using extremely light-weight aircraft that resemble a hand-glider with a small engine failed. The marijuana/pot is strapped to the contraption, flown across the border and off -load while the plane is still in the air. The aircraft can carry 200 pounds of marijuana/pot. The government’s ability to detect the aircraft is confounded by the fact that it is painted black, flies at approximately 500 feet and makes little noise. The government’s effort to interdict the flying machine with helicopters has not been successful.

Many years ago a South African anthropologist concluded that William Shakespeare was a marijuana/pot smoker. The conclusion was grounded upon the fact that traces of cannabis were discovered in some smoking pipes found in the playwright’s gardens. The anthropologist is now interested in exhuming Shakespeare body to retrieve DNA sample to determine if Shakespeare used the drug.

In June, both a Democrat and Republican sponsored a bill in the House of Representatives that would allow marijuana/pot laws to be controlled by the state government as opposed to the federal government. One of the sponsors said that the criminal prosecution of marijuana cases is "is a waste of law enforcement resources and an intrusion on personal freedom." The bill is not expected to be received with any enthusiasm because in the words of one politician this type of legislation would only lead to more addiction and greater profits for drug cartels.

DRUNK DRIVING ATTORNEY IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: EXTENDED DELAY DID NOT OFFEND DEFENDANT'S SPEEDY TRIAL RIGHTS

Thu, 08 Sep 2011 08:00:00 EST

In the seminal case of Barker v. Wingo, the United States Supreme Court establish a balancing test to determine whether a delay in bringing a criminal prosecution to resolution violated a citizen’s Sixth Amendment right to a speedy trial. In that case, the Court identified four factors to be used to determine whether a defendant's right to a speedy trial had been violated. They were: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his right for a speedy trial; and (4) the existence of any prejudice. Recently, the Appellate Division was required to review a drunk driving/DWI case where there was a delay of 296 day between defendant’s arrest and the date of his trial and another 798 days between the date he filed his appeal and the adjudication of that appeal.

In analyzing these four factors, the court first observed that the reason for the delay was inordinate and that it was grounded in large part by the fault of both the prosecution and the court system. Specifically, the prosecution was unable to readily produce the dashboard videotape that depicted events at the arrest site. Thereafter, the local court failed to properly prepare the transcripts necessary to assist defendant’s de novo review to the Law Division. To further complicate matters, the Law Division dismissed defendant’s appeal without sending defendant notice of its action. Notwithstanding, this inexcusable delay and neglect, the Appellate Division noted that defendant had not asserted his right to a speedy trial, which was a significant component of the Barker factors. It also concluded that there was no prejudice resulting from the delay in adjudicating the case. Resultantly, it affirmed the trial court's decision, which refused to dismiss defendant’s prosecution based on speedy trial principles.

DRUNK DRIVING/DWI LAWYER IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: FIELD SOBRIETY TEST IN DWI CASE, NEED NOT BE ADMINISTERED IN STRICT COMPLAINT WITH THE NATIONAL HIGHWAY SAFETY ADMINISTRATION STANDARDS

Wed, 07 Sep 2011 08:00:00 EST

On February 3, 2009 a drunk driving/DWI arrest occurred in Hawthorne as a result of a motor vehicle accident. At the time of the initial encounter the investigating and arresting police officer observed the usually indicia of drunk driving, including erratic driving, the smell of alcohol, flushed face, watery eyes, bloodshot eyes, slow and slurred speech and the inability to stand. In addition, defendant could not successfully complete the field sobriety test, including the one-leg-stand test or the walk-and-turn test or finger-to-nose test. Defendant was ultimately arrested and brought to headquarters to participate in an Alcotest. In time, it was determined that the Alcotest was not functioning. Thus, the government case against the defendant was grounded upon his demeanor at the time of the arrest.

At trial, defendant’s principle defense was that he was a laborer who had worked a 24-hour shift and that as a result, the symptomology observed by the arresting police officer was consistent with sleep deprivation. Defendant produced three individuals to testify as witnesses. The first was his work supervisor who confirmed defendant’s time at the workplace. The second was a licensed clinical psychologist who testified that defendant’s demeanor was consistent with sleep deprivation. The third was Gary Aramini, a well received and well respected DWI consultant who testified that the field sobriety tests conducted by the investigating police officer were not administered consistent with the standards established by the National Highway Safety Administration. (NHSA). Although the trial court concluded that each of these three witnesses were credible, it also found that the investigating police officer’s observations were equally credible, and to that extent, defendant was found guilty of drunk driving/DWI.

On appeal to the Appellate Division, defendant contented that the trial judge's decision was against the weight of the evidence. Here, the court appellate deferred to the trial court's finding of fact, which was a conclusion required by well-established principles of law. More importantly, however, it observed that even if the field sobriety tests were not administered in strict compliance with the standards established by the NHSA defendant’s "performance was so markedly at variance from the norm" that expert testimony on this issue was "meaningless". As a result, the court affirmed defendant’s conviction.

DRUG/MARIJUANA ATTORNEY IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: RESTRICTED PLEA AGREEMENT VACATED

Tue, 23 Aug 2011 08:00:00 EST

In 1989, New Jersey’s Supreme Court concluded that a plea agreement that gave the government the opportunity to withdraw from a plea arrangement, if the sentencing judge imposed a period of incarceration less than the one subject of the plea agreement. Recently, the court reaffirmed the general proposition subject of that ruling in a different setting.

In the case before the Court, defendant was charged with the first-degree murder of her husband. The government's contention was that the murder was the product of defendant’s fear that the husband would learn about her financial problems. Her defense was that she was physically and verbally abused by the husband. The case ultimately resulted in a plea where defendant pled to aggravated manslaughter with a 30 year term of imprisonment. The agreement also required that defendant stipulate that the aggravating factors exceeded the mitigating factors; that she would not argue for a more lenient sentence on sentencing day; and, that she would not appeal her conviction. At the time of sentencing, and without the objection of defendant’s counsel the government was able to play a montage of defendant's life which showed a photograph of his tombstone. The government also elicited an impact statement from the husband’s co-worker.

After sentencing, defendant filed a application for post conviction relief, alleging ineffective assistance of counsel. The application was denied by the trial court and affirmed by the Appellate Division. The decision was reversed by the Supreme Court. In rendering its decision, the Court looked to the 1989 ruling that significantly impeded restrictions on plea negotiations and also concluded that defendant's trial attorney improperly failed to object to the two categories of evidence produced at sentencing and that he also failed to develop the prospect that defendant may have been suffering from Battered Women Syndrome.

DRUG/MARIJUANA ATTORNEY IN BERGEN (HACKENSACK), PATERSON (PASSAIC) AND MORRIS (MORRISTOWN) COUNTIES: IMPROPER COMMENTS MADE BY PROSECUTOR IN SUMMATION REQUIRES REVERSAL

Fri, 19 Aug 2011 08:00:00 EST

In May 2008, a defendant was indicted for, among other things, first-degree armed robbery in Warren County. In the case against defendant, the government sought to establish that defendant approach a gas station attendant and used a knife to coerce a turnover of the attendant’s money. The use of a knife under the circumstances of this case could produced first-degree criminal liability. Otherwise, this case would have been a second-degree robbery offense. A surveillance tape did not establish defendant’s possession of a knife and a third-party witness could not testify that he saw a knife at the time of the crime.

During summation, the government's lawyer stated to the jury that "when you listen to defense counsel, as I said, read between the lines. There is no question. Everybody knows defendant did this.” Defendant was ultimately convicted of first degree armed robbery. On appeal, defendant argued that the government’s attorneys comments to the jury was improper. In analyzing the issue, the court said that the government’s comment in closing led to the "ineluctable conclusion" that the government's lawyer suggested that defendant’s counsel recognizes his guilt. Continuing, the court said that although the government’s closing statements "may strike hard blows" they may not "strike foul ones. Given the circumstances of this case, the court concluded that the government's comments which cast aspersions against defense counsel were unjustified, and as a result, the case had to be reversed, even though the evidence was overwhelming against defendant.

DRUG/MARIJUANA ATTORNEY IN BERGEN (HACKENSACK), PATERSON (PASSAIC) AND MORRIS (MORRISTOWN) COUNTIES; PERSONAL USE DEFENSE NOT AVAILABLE IN MANUFACTURING OF CDS OFFENSE

Thu, 18 Aug 2011 08:00:00 EST

A few years ago a National Guard helicopter observed a marijuana grow in Franklin Township. A subsequent investigation determined 17 mature marijuana/pot plants that were described as "lush”. The plants were owned and cultivated by an individual who was suffering from multiple sclerosis. The individual was ultimately charged with operating a Manufacturing Facility, which is a serious offense that can produce second or first-degree liability. The statute that controls the disposition of this type of offense, however, provides an exemption where the preparation and/or compounding of the CDS was for personal use. At trial, defendant sought to produce evidence of the personal-use defense authorized by the statute. The government sought to bar this evidence. The trial court ruled in favor of the government's motion. The case went to the Appellate Division.

On appeal, the court concluded that the personal-use defense was to be narrowly interpreted and that it could not be applied where defendant’s activity included planting, nurturing and harvesting marijuana/pot, especially given the number of marijuana/pot plants subject of this case. This conclusion, so the court said, was consistent with the policy enunciated by the legislators in the state’s drug laws, which focuses on the seriousness of the offense as well as the quantity and purity of the substance. The court also looked to other states with similar personal-use defenses and concluded that none of those states applied the defense to a case where there was a high-degree of illicit activity like the growing of numerous marijuana plants.

DRUGS/MARIJUANA LAWYER IN BERGEN (HACKENSACK), PASSAIC (PATERSON),MORRIS (MORRISTOWN) COUNTIES: GOVERNOR CHRISTIE AGREES TO IMPLEMENT NEW JERSEY'S MEDICAL MARIJUANA LAW

Wed, 17 Aug 2011 08:00:00 EST

As explained in an earlier blog, the federal government has recently issued a letter to New Jersey's Attorney General indicating that it has no intention of prosecuting state employees while they administered the state’s medical marijuana law. Last Tuesday, Governor Chris Christie gave the go- ahead to open the dispensaries authorized by the statute because he believes that the law, which is narrowly defined, will not run afoul of federal drug laws.

The federal government's letter indicated that while other states’ medical marijuana laws have produced "large scale" marijuana/pot industries which may be subjected to federal investigations and prosecution, it did not believed that a similar result will occur in New Jersey because the statute is one of the strictest in the nation. Patients who qualify will be severely limited to the amount of marijuana/pot they can receive as well as the quality of the marijuana/pot dispensed. New Jersey statute authorizes six dispensaries in various parts of the state and thus far ninety-two physicians have registered for the program

LIQUOR LAW LIABILITY/DRAM SHOP ACT ATTORNEY IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: DRUNK DRIVER CAN SUE FOR INJURIES IN AN AUTO ACCIDENT DESPITE LANGUAGE IN A NEW JERSEY STATUTE TO THE CONTRARY

Fri, 22 Jul 2011 08:00:00 EST

There is a statute in New Jersey that relates to automobile insurance coverage which precludes a drunk driver from prosecuting any claims for personal injury he/she may have sustained as a result of an accident automobile accident.

Recently, New Jersey’s Supreme Court analyzed that statute in the context of a case filed under New Jersey’s Dram Shop Act. In that case, a drunk driver with a blood-alcohol-concentration of .196, was seriously injured in a motor vehicle accident. After the drunk driver pled guilty to driving while intoxicated he sued the driver of the other vehicle for damages. The trial court refused to dismiss the drunk driver’s claim despite the clear instructions of the statute referenced above. That decision was later affirmed by the Appellate Division. There, the court determined that the underlying purpose of the Dram Shop Act was to curb liquor license holders from serving intoxicated patrons and that the public policy associated with that statute far outweighed the public policy contained in the statute that barred an individual from prosecuting a civil claim when that person was operating a motor vehicle while intoxicated. In essence the Appellate Division said that the need to contain an entire industry from serving intoxicated drivers was more important than the need to penalize one individual for driving while intoxicated. The Supreme Court's affirmed the Appellate Division’s decision for the same basic reasons.

DRUG/MARIJUANA ATTORNEY IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: NEW JERSEY'S ATTORNEY GENERAL CALKS AT IMPLEMENTATION OF MEDICAL MARIJUANA LAW

Thu, 21 Jul 2011 08:00:00 EST

Proponents of New Jersey’s medical marijuana law had been miffed that the current administration's has been dragging its feet in its effort to enact regulations to advance the state’s medical marijuana law that was put into place in January 2010. Recent developments have further confounded the progress of the statute.

Specifically, in April 2011 New Jersey’s Attorney General wrote to the United States Attorney General to obtain some instruction as to whether state employees who would administer the medical marijuana program would be subjected to criminal prosecutions. This letter was the product of statements made by other United States Attorneys in California and Washington, who indicated that, notwithstanding those states’ decisions to implement medical marijuana laws, anyone involved with the growing or dispensing of marijuana would be prosecuted, including state employees.

In June, the United States Attorney General responded to New Jersey’s Attorney General’s letter by advising that his office was not inclined to prosecute registered patients or employees of the government who were participating in the supervision and regulation of the distribution process under the statute. He also said that his office’s focus would be on large-scale commercial marijuana operations.

Although some people complain that the federal government's response is not as clear as they wanted it to be, others take a different view and contend that any further delay by the state’s head law enforcement official is merely an excuse to further stultified the program.

DRUG MARIJUANA LAWYER IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: RECENT HARRIS ROLL INDICATES PRO-MARIJUANA STAND

Mon, 11 Jul 2011 08:00:00 EST

Recently, a Harris Poll developed a number of interesting statistics with respect to the use of marijuana in America. In excess of 3,000 adults were interviewed this winter to complete the study. The results of the survey were in line with an earlier survey of similar purpose conducted by ABC News in conjunction with the Washington Post. Some of those numbers indicate that:

    A.    75% of adults in the country endorsed medical marijuana laws.

    B.    51% of adults in the country maintain that if marijuana/pot is decriminalized the crime rate in the country would be reduced.

    C.    75% of the citizens recognize that the legalization of marijuana/pot would generate a significant increase in tax dollars:

    D.     42% of the people supported legalization of marijuana versus 49% who resisted the proposition. These numbers changed in New England which is soon becoming the focal point of the legalization of marijuana in the county. There, 50% of the population would allow the recreational use of marijuana/pot without legal consequence.   People in the West maintain the same statistic on the issue as well.

LEGAL MALPRACTICE IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: MUNICIPAL COURT JUDGE CHARGED WITH ETHICS VIOLATIONS CHANGES STORY

Fri, 08 Jul 2011 08:00:00 EST

Months ago a municipal court judge in Bergen County was cited for violating certain canons of professional responsibility for events involving a police sergeant working in the town where she sat as a judge. Within recent times, this judge recanted on her original response to these accusations and virtually admitted the facts at the core of the controversy.

Specifically, on an evening in May 2008 an investigator from the Attorney General's office visited the judge's home for purposes of serving a grand jury subpoena on the judge’s husband and law partner. The subpoena related to an investigation of certain council members in the judges’ hometown. Ostensibly, the judge and her husband, were upstairs at the time of the investigator’s visit. The investigator was greeted at the door by the husband’s mother. At one point, the investigator climbed the stairs of the judge's home yelled out the husband's name and asking him to come downstairs. When the husband was served with the subpoena the investigator left. Meanwhile, the judge who was still upstairs called 911 for assistance. In route to the site, a sergeant of the police department intercepted the investigator and determine his purpose in the neighborhood. When the sergeant and other police officers arrived at the judge's home the judge berated the sergeant for not doing his job and accused him of mishandling his responsibilities and failing to provide her with sufficient protection.

In her original response to the ethic’s committee accusations the judge denied that she yelled at the police officer and attributed any intemperance at her home to her husband. She also said that the investigator never identified himself and virtually push his way upstairs. It was these versions of the incident that were recanted by the judge. The judge has since left the bench.

DRUG/MARIJUANA IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: MAN VINDICATED IN DRUG-RELATED MURDER SUES COUNTY PROSECUTORS

Thu, 07 Jul 2011 08:00:00 EST

In 1988, a jury convicted Paul Kamienski and another of murder, felony murder and drug possession conspiracy. The government's theory of the case was that the murders resulted from a drug deal gone bad. The trial court rejected jury's verdict on the murder charges and sentenced Kamienski to the drug related offense. An appellate court later reinstated the murder convictions and sentence him to life terms along with a 12 year consecutive term for the drug convictions. It also imposed a 40 year parole disqualifier.

After Kamienski exhausted his appellate routes in New Jersey, he moved to the federal courts, where the Third Circuit granted his petition for habeas corpus and ordered his release. Recently, Kamienski sued the Ocean County Prosecutor’s Office, contending that the lawyers and investigators assigned a case illicitly influence his former girlfriend to make false statements, including one where she said Kamienski dispose of the body subject of the murder. He also claimed that the prosecutor’s office withheld evidence that could have establish his innocence, including the fact that DNA was not found on any of the items located at the murder scene.

The case was filed in the Federal District Court of New Jersey against prosecutors, former prosecutors and investigators. One of the prosecutors is now Superior Court Judge. Kamienski seeks compensatory and punitive damages.

DRUG/MARIJUANA IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: DEPORTATION AND THE COLLATERAL CONSEQUENCES OF A DRUG-RELATED CONVICTION

Wed, 06 Jul 2011 08:00:00 EST

The 2009, New Jersey’s Supreme Court concluded that the failure to advise a resident alien that a criminal conviction could cause deportation was sufficient to allow the resident alien to vacate the guilty plea. A similar decision was rendered by the United States Supreme Court a year later, in a case titled Padilla v. Kentucky. Recently, an appellate panel in New Jersey analyzed a similar issue with a special wrinkle.

In that case, defendant, along with another, was arrested and prosecuted for the sale of approximately $7,500 of CDS. The indictment charged defendant with first-degree distribution of CDS and a third-degree distribution of CDS in a school zone. Ultimately, the government offered a plea arrangement that required defendant to plead to the first-degree distribution charge with a 10 year term of imprisonment and 2 ½ year period of parole ineligibility. During the plea proceeding , the trial court specifically advise defendant that a conviction could cause deportation, which was an issue specifically covered by the plea form signed by the defendant in his trial lawyer's office the night before.

Thereafter, defendant’s sentence was deferred because of a promise to cooperate. Although defendant’s cooperation was not productive, the government ultimately agreed to reduce his parole disqualifier by one year because of his good faith effort. Later, defendant filed a post-conviction release application contending that he had not received sufficient instructions and information about the prospects of deportation, given his commitment to cooperate with the government. During the plenary hearing, defendant’s PCR’s lawyer received testimony from defendant’s trial lawyer that he believed that defendant’s cooperation would be a factor to be considered by the federal government during the deportation proceeding. The appellate panel determined that this was erroneous advice and allow defendant to vacate his plea.

DRUG/MARIJUANA LAWYER IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: THIS AND THAT

Thu, 30 Jun 2011 08:00:00 EST

Within the last year, Russia implemented a medical marijuana law. In June it opened its first dispensary to distribute the marijuana/pot to qualified patients. It is expected that other dispensaries will be open in three other Russian cities within the near future. Patients cannot qualify for the administration of the drug if they are under 18 or pregnant.

The administration of Canada’s medical marijuana law, which was passed quite some time ago, has been stalled by rather restrictive regulations that impede the distribution of marijuana/pot to many qualified patients. Recently a court in Ontario concluded that the restraints were illicit and rejected them. It is expected that the government will appeal the decision.

In November Willie Nelson was busted again for possession of marijuana. This time it was in El Paso, Texas. A lawyer by the name of Kit Bramblett has suggested that in lieu of community service Mr. Nelson should sing "Blue Eyes Crying In the Rain".

In January, former talk show host, Montel Williams was arrested for possession of a marijuana pipe at a Milwaukee airport. Those charges were dismissed by a judge who recognize that William suffers from multiple sclerosis.

DRUG/,MARIJUANA LAWYER IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: TIME TO OBJECT TO ADMISSIBILITY OF LAB CERTIFICATE EXTENDED

Tue, 21 Jun 2011 08:00:00 EST

Under New Jersey’s drug law the government may place into evidence a lab certification identifying the quantity and type of the controlled dangerous substance subject of a drug prosecution without producing the individual that conducted the analysis unless a defendant objects to the admissibility of the document within ten (10) days after the government notifies the defendant of its intention to use the lab report.

In a recent case involving this issue, a defendant was stopped by a local law enforcement agent for a motor vehicle violation. During the arrest the defendant admitted to possession of marijuana. At trial the prosecutor sought to introduce into evidence the lab certificate that confirmed that the substance was marijuana. The defendant's lawyer objected and moved to exclude the evidence. The municipal court denied the application and found that defendant’s complaint was out of time. The defendant was convicted. That conviction was affirmed on appeal to the Law Division.

The Appellate Division rejected the governments argument that defendant’s objection to the use of the lab certificate was untimely and extended the time constraints of that rule given the special circumstancesof the case. Specifically, the court concluded that defendant was not required to file an objection within 10 days after receiving the lab report or the government’s notice of its intention to use the lab certificate. The 10 day time constraints would begin to run, so concluded the court, when the government produced the notice of intent to proffer the lab certificate, the lab certificate and all other documents supporting the laboratory’s analysis. In reaching this conclusion, the court observed that a defendant in a drug case is required to establish "specific grounds" for an objection. In order to accomplish that task defendant had to be supplied with all of the underlying information and documentation associated with the laboratory’s analysis.

Notwithstanding this ruling, the court affirmed defendant’s possession of drug paraphernalia and remanded the case to the Municipal Court to determine whether the State had proven beyond a reasonable doubt the defendant’s possessory offenses.

DRUG/MARIJUANA LAWYER IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: MARIJUANA CONFIRMED TO INCREASE APPETITE

Mon, 20 Jun 2011 08:00:00 EST

It has long been recognized that marijuana enhances the appetite. Indeed, this belief that marijuana can stimulate the appetite was the prime mover in the medical marijuana movement. These conclusions, however, were largely anecdotal. In February of this year, the University of Alberta-Edmonton published in a journal titled Annals of Oncology the results of a double-blind study that was conceived to determine whether THC can truly enhanced the sense of taste and smell and increased appetite in cancer patients.

The study included a number of patients who were suffering from cancer in its advanced stages, and as a result were eating less. Twenty-one of these patients completed the study that lasted for eighteen days. Some patients received THC capsules two times each day. Others received placebos. Two-thirds of the people ingesting THC indicated that they had better appetites. 75% reported "an increased appreciation of food", and 55% said that the THC, "made food taste better".

DRUG/MARIJUANA LAWYER IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: THE HIGH COST OF THE WAR ON DRUGS IN NEW YORK CITY

Mon, 20 Jun 2011 08:00:00 EST

In 2010, New York City spent $75 million in law enforcement expenses for the interdiction, arrest and prosecution of drug crimes. 50,000 of those arrests related to possession of small quantities of marijuana. The cost equated to approximately $1500 per arrest. Most of these arrest pertained to the use or possession of marijuana in public places. Noting parenthetically, that possession of small quantities of marijuana in non-public places in New York City cannot provoke an arrest but merely the issuance of a ticket and a relatively small fine.

Some people are complaining that these arrest, which are often motivated by race is really "collars for dollars" in that investigating police officers are able to generate over-time and enhance their arrest records. It has been noted also that more possessory arrests have occurred in Mayor Bloomberg's administration, then the combined number of arrest is the three prior administrations (i.e., Giuliani, Dinkins and Koch). More troubling, however, is that it is contended that many of these arrest are illegal. In this regard, radio station WNYC conduct an investigation that appears to produce a conclusion that many of the warrantless searches of people on the streets in New York City are illicit.

LEGAL MALPRACTICE LAWYER IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: MUNICIPAL JUDGE CHARGED WITH ETHICS VIOLATION FOR FRAUDULENT TRANSFERS

Fri, 10 Jun 2011 08:00:00 EST

In Passaic County a lawyer who serves as a judge in four municipalities and functions as a attorney for various boards in other municipalities, has been charged with various ethics violations by the Advisory Committee on Judicial Conduct.

There were three separate violations asserted against the judge. The first related to improper political contributions that he made through a business entity that he owned or controlled. The second pertained to a case where the judge's law firm represented a police officer for the City of Passaic in a civil and criminal controversy at a time when the law firm was disqualified because of the judge’s position as a magistrate in a town located in Passaic County. The third, and perhaps the most serious, evolved from a number of the judge’s failed real estate investments.

As to this last accusation, it seems that the judge had been sued over 40 times where more than $2.5 million in judgments had been returned against him to the extent that his creditors levied on his judicial wages. The ethical complaints allege that the judge failed to report to the Administrative Office of the Courts that he had been sued 43 times; that he had twice transferred title of his beach home to relatives to avoid payment of judgments were both transaction were voided because they were considered fraudulent; and, at least three Superior Court judges found him in violation of litigant’s rights when he failed to provide information that would allow creditors to locate his assets.

The ACJC contends that these violations undermine his judicial office and "severely and irrevocable impaired it."

DRUNK DRIVING/LAWYER IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: SECOND WARNING NOT REQUIRED TO TRIGGER REFUSAL CONVICTION IF SUBJECT FAILS TO GIVE A PROPER BREATH SAMPLE

Thu, 09 Jun 2011 08:00:00 EST

By the instructions of a New Jersey statute law enforcement agents are required to read to a drunk driving arrestee an 11 paragraph statement advising the arrestee of, among other things, of his/her responsibility to submit a breath test as well as the consequences of a refusal. The statute also instructs that if the arrestee refuses, answers by requesting an attorney or otherwise gives a conditional or ambiguous answer, the law enforcement agent must continue with further instructions about the consequence of not providing an unequivocal consent.

Recently, the Supreme Court addressed the question as to whether the second part of the statute had to be read where the arrestee failed to provide adequate breath samples. In that case, the drunk driver consented to provide a breath test after he had received the 11 point instructions. His consent was unconditional. Thereafter, the drunk driver provided two successive breath samples that were inadequate. At that point, the arresting police officer warned the drunk driver of the consequences of providing insufficient breath samples. When the drunk driver provide a third inadequate sample the drunk driver was charged with refusal.

On appeal to the Law Division of the Superior Court the drunk driver claimed that the arresting police officer had an affirmative responsibility to read the second component of the warning contained under the statute. That contention was rejected by the court. On appeal to the Appellate Division, the conviction was reversed. The court concluded that the drunk driver’s failure to provide sufficient breath samples was "an ambiguous indication of purpose" and as a result the second part of the statute should have been read.

The case was ultimately presented to the Supreme Court, where the conviction was reinstated. There, the Court concluded that since the drunk driver’s consent was unequivocal his failure to provide sufficient breath samples did not require the additional warning.

LEGAL MALPRACTICE ATTORNEY IN BERGEN (HACKENSACK), PATERSON (PASSAIC) AND MORRIS (MORRISTOWN) COUNTIES: AN ATTORNEY'S FAILURE TO PROPERLY MONITOR A PERSONAL INJURY CASE CAUSES A THREE-MONTH SUSPENSION

Fri, 03 Jun 2011 08:00:00 EST

In 1998, a Cherry Hill lawyer filed a personal injury lawsuit on behalf of a client. Thereafter, the lawyer failed to return phone calls or response to the client's letters requesting progress reports. Unbeknown to the client the case was dismissed in 1999. Thereafter, the client fired the lawyer and engaged a new one. The new lawyer wrote to the former lawyer and requested the file on a number of occasions. The former lawyer never responded to those requests. Ultimately, the new attorney filed an action requiring a order requiring a turn over of the file. On the return date of the order to show cause accompanying the complaint, the former attorney produce the file. The new lawyer then filed a motion to reinstatement the case which was denied. Ultimately, the client filed a legal malpractice action against the former lawyer and obtained a default judgment in the amount of $17,500. Once the judgment was returned the client sought to collect on the judgment by obtaining information about the former lawyer’s financial profile. The former lawyer refused. When the former lawyers recalcitrance persisted, the new lawyer filed a motion seeking to enforce litigant’s rights. On the return date of that motion the lawyer issued a check in favor of the client for the full amount of the judgment.

The matter was reported to the Discipline Review Board. In May, the DRB suspended the former lawyer for three months. Under most circumstances a lawyer who fails to properly communicate with a client is subjected either to a reprimand or a censure. In this case, however the DRB noted that the former lawyer had a history of reprimands including an incident where the DRB improperly failed to communicate with a client, made misrepresentations to disciplinary authorities, fail to provide clients with a fee agreement in writing and refused to release the file to a new attorney after he had been discharged.

LEGAL MALPRACTICE ATTORNEY IN BERGEN (HACKENSACK), PATERSON (PASSAIC) AND MORRIS (MORRISTOWN) COUNTIES: OUSTED PROSECUTOR RECOVERERS $1.3 MILLION DOLLAR VERDICT AGAINST FORMER MUNICIPAL EMPLOYER

Fri, 03 Jun 2011 08:00:00 EST

In 2007, a municipal prosecutor in Mercer County cooperated with the F.B.I. who was investigating the judge of the municipality where the prosecutor worked. Somehow, the prosecutor's cooperation was disclosed to local authorities and the municipal court judge. Tension began to mount immediately. Later, the prosecutor contacted the local police chief and told him that the municipal court judge appeared to be inebriated at a court session. The incident was further reported to the county’s presiding judge for the municipal court system and later, ethics committee. At that point, the municipality posted a job opportunity for prosecutors and the prosecutor ultimately lost her job.

Ultimately, the ousted prosecutor filed an action against the municipality under the Conscientious Employee Protection Act. Recently, a jury returned a verdict in favor of the prosecutor in the amount of $1.3 million.

As a side note, the Supreme Court permanently enjoined the municipal court judge subject of the controversy from judicial office. The basis of that decision was that the judge mistreated litigants and lawyers who appear before him, participated in court sessions influenced by alcohol and drugs and otherwise acted improperly in public which included an event in which he was involved in an altercation in a local bar.

LEGAL MALPRACTICE ATTORNEY IN BERGEN (HACKENSACK), PATERSON (PASSAIC) AND MORRIS (MORRISTOWN) COUNTIES: LAWYER'S DUTY TO ADVERSARY'S CLIENT

Wed, 01 Jun 2011 08:00:00 EST

In 2005, a mother, who was involved in a vexatious divorce, spirited her child to her home country in Spain without the consent of the father. Although the mother returned to the U.S. and is now serving time in prison for a conviction relating to her interference with the father's custody, the child still remains in Spain. The mother's ability to remove the child to Spain was facilitated by her lawyer who had the child's passport. Apparently a parenting agreement between the father and mother contained a provision prohibiting the mother for removing the child from the country without the father's written consent. In ostensible effort to secure this issue, the mother was required to give the child's passport to her attorney. Thereafter, the mother's attorney gave the passport to the mother which allowed her to remove the child from the jurisdiction.

In 2007 the father sued the mother's attorney for an damages he sustained when the attorney released the passport. Recently, a jury returned a verdict against the attorney in the amount of $950,000. The principal theme raised by the husband in the case was that by the nature of the agreement between the parents, the wife's attorney became a trustee of the passport and as a result she had a duty of responsibility to the father.

DRUGS/MARIJUANA ATTORNEY IN BERGEN (HACKENSACK), PATERSON (PASSAIC) AND MORRIS (MORRISTOWN) COUNTIES: DEFENDANT'S CONVICTIONS SUSTAINED WHERE HE MEETS LAWYER FOR THE FIRST TIME ON THE DATE OF TRIAL

Tue, 31 May 2011 08:00:00 EST

A Mercer County defendant's conviction was recently sustained when an appellate panel determined that there was no "fundamental unfairness” in a case where defendant met his lawyer for the first time on the date of the trial.

In the case, the defendant’s original public defender was removed and a new one appointed. Later, a trial date was rescheduled. Although the new attorney received the file, reviewed it before the trial date and was ready to try the case, he was anxious to proceed because he had not yet met his client. Resultantly, he requested the court for an adjournment. The trial court rejected the application and in the process said that the case was like "trying an intersection accident case as a civil trial attorney". The matter proceeded to a motion to suppress. The next day trial began. Ultimately, defendant was convicted of the number of drug-related offenses including a third-degree possession of cocaine and possession with intent to distribute. He received a sentence of five years in prison. Ultimately, he was paroled.

In affirming the conviction, the appellate panel noted that the new lawyer represented the defendant in various portions of the pretrial stage; that he knew about trial date; and that the new lawyer was able to review the file.

A dissenting judge found that the trial court's refusal to grant an adjournment "fundamentally impugned the integrity of the trial, casting a shadow of unfairness over the preceding that, in my view, can only be removed by the new trial". This dissent can qualify this case for review by New Jersey’s Supreme Court.

DRUG/MARIJUANA ATTORNEY IN BERGEN (HACKENSACK), PATERSON (PASSAIC) AND MORRIS (MORRISTOWN) COUNTIES: INEFFECTIVE ASSITANCE OF COUNSEL CAUSES A COURT TO VACATE A GUILTY PLEA

Fri, 27 May 2011 08:00:00 EST

In May 2011, defendants guilty plea was retracted by an appellate panel because his attorney failed to provide him with effective assistance of counsel.

The defendant in that case and a co-defendant were charged with multiple armed robberies. The co-defendant ultimately pled guilty to some of the offenses and implicated the defendant. A day later, defendant and his attorney sought to negotiate a deal with the prosecutor. During those discussions, the prosecutor told defendant of the co-defendant's statement which inculpated him and also that as a result of the multiple armed robberies he was eligible for extended term of up to life imprisonment. The defendant agreed to the plea arrangement which required him to plea to a first-degree offense and to be sentenced as a second-degree offender. Later at lunch while defendant and his attorney began working on the plea form he rejected the deal. After lunch, defendant was brought to the trial court who advised him of the co-defendant statement. At this time, defendant again changed his mind and agreed to provide a factual basis for the plea.

One week later defendant sent a letter to the court and his lawyer requesting that he had the opportunity to retract the plea. He also requested his lawyer to file a formal motion. The lawyer refused to file the motion and at the hearing to determine whether the plea should be retracted the defense attorney told the court that she and members of her office conducted an independent investigation and determined that defendant was guilty. In addition, the trial judge had somehow received a copy of a letter from the defendant to his attorney and observed that defendant’s real purpose in seeking to set aside the plea was merely to renegotiate. The judge denied the application.

On appeal the court determined that the plea had to be retracted for two specific purposes. The first was that the lawyer had an affirmative responsibility to pursue a motion on behalf of her client to vacate the plea consistent with the ruling of the New Jersey’s Supreme Court in State v. Hayes. The second reason and perhaps a more important one was that the defense attorney should not have denigrated her client’s position before the court.

DRUGS/MARIJUANA ATTORNEY IN BERGEN (HACKENSACK), PATERSON (PASSAIC) AND MORRIS (MORRISTOWN) COUNTIES: NEW STUDY SHOWS DRUG SNIFFING DOGS ARE NOT RELIABLE

Thu, 26 May 2011 08:00:00 EST

Approximately 17 years ago, the United States Supreme Court endorsed the use of drug sniffing dogs in a criminal investigation. A recent study at University of California has concluded that the basis of the Supreme Court's decision is nothing more than "scientific fiction”.

The study shows that drug dogs made over 200 mistakes when sniffing rooms that did not contain any essence of marijuana/pot during the testing process. The animals, the researchers concluded, produced a high rate of false positive alerts when the handlers were conditioned to believe that drugs were in a specific location. In short, the dog’s perception was influenced by the handler’s perception.

Moreover, a study at the University of Pennsylvania School of Medicine in 2004 was conceived to determine the capabilities of police officers to detect the odor of packaged marijuana/pot secreted in the trunk of a motor vehicle. Six of the nine participants could not discern the essence of marijuana/pot. In another test each of the nine participants were unable to detect the smell of marijuana/pot coming from an exhaust fan at a grow house. The study ultimately concluded that "blanket acceptance of testimony based on reported detection of odors of marijuana for probable cause is questionable"

MARIJUANA/DRUG LAWYER IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: GOVERNMENT AGENTS MUST PRESERVE CONTEMPORANEOUS

Tue, 17 May 2011 08:00:00 EST

One of the greatest treasure troves in a criminal investigation is the primary or rough notes taken by government agents during the course of their investigation. In 2005 in New Jersey Supreme Court decided a case titled State v. Branch. In that decision the court gave the law enforcement community specific instructions that investigative notes should not be destroyed.

Recently, the Court revisited that principle in a case where an investigator destroyed contemporaneous notes because the protocol in her office instructed her to do so. In its opinion, the Court observed that "the time has come to join other states that require the imposition of appropriate sanctions when officers written notes are not preserved". That sanction, so the Court said, was to allow the jury to take a negative inference that the notes could have helped the defense. In rendering its decision, the Court looked to various sections of the criminal discovery rules and noted that all written statements whether signed or unsigned must be produced during the discovery process. In opposing defendant's position, the government's attorney said that contemporaneous notes are not always as accurate. In response to this contention, one of the Justices said that this was a credibility issue that had to be decided by the jury.

Notwithstanding, the ruling on the government's responsibility to preserve the integrity of investigative notes, the Court affirmed defendant’s conviction because his defense attorney did not request a negative inference charge at trial.

DRUNK DRIVING/DWI LAWYER IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: LEGISLATORS MOVING TO ALLOW A PREVIOUS BREATH-TEST REFUSAL CONVICTION TO ENHANCE PUNISHMENT IN DWI CASES

Fri, 13 May 2011 08:00:00 EST

In this state if you are convicted of a second DWI offense the penalties are: (a) a mandatory term of imprisonment of between 2 days and 90 days; (b) a license suspension for 2 years; (c) the installation of an interlocking device to be placed on your vehicle; (d) 30 days of community service and (e) serious financial penalties. Third offender penalties are: (a) a mandatory term of imprisonment of 180 days; (b) a license suspension for 10 years; (c) the installation of an interlocking device on your vehicle; and (d) serious financial penalties.

In 1999, an Appellate Division panel concluded that a prior breath-test refusal conviction cannot be used to enhance a subsequent drunk driving/DWI conviction. In a case that originated in Rumson in 2008, however, a municipal court judge decided to use a prior refusal conviction to enhance penalties in a drunk driving/ DWI case. That decision was by rejected by a Law Division judge on appeal. In an appeal to the Appellate Division the municipal court judge’s decision was reinstated. Ultimately, the case found its way to the Supreme Court which concluded that prior refusal convictions cannot be used to enhance subsequent drunk driving/DWI convictions.

Recently, the Senate approved a bill that would overturn the Supreme Court's ruling and authorize a prior breath-test refusal conviction to enhance a subsequent drunk driving DWI conviction.

LEGAL MALPRACTICE ATTORNEY IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: MUNICIPAL JUDGE REPRIMANDED FOR ASSERTING OFFICIAL INFLUENCE IN PRIVATE DISPUTE

Wed, 04 May 2011 08:00:00 EST

A municipal judge was recently reprimanded for using his office to influence a private dispute.

In the underlying case, the municipal court judge’s Mercedes-Benz was dented by a student while located in a high school parking lot. Although the student filed a police report, the municipal court judge was interested in speaking with the student’s parents and, as a result, he visited the local police department to obtain relevant information. One of the investigating officers refused to provide the judge with the information and told the judge that he would contact the parents. That evening, the judge spoke to another police officer and informed him that he wanted to file a criminal complaint. Again, he requested contact informative for the parents. Ultimately, the student’s, parents contacted the judge who spoke to the parent in an ‘offensive” tone and in an “highly inappropriate manner.” He also demanded payment for the damage. Later, the judge sued the student. He also sued his parents for negligent supervision. The civil case was tried and a verdict of $616 issued in favor of the judge. That decision was vacated and the case removed to another County.

The Advisory Committee of Judicial Conduct found that the judge abused his office to gain an advantage in private litigation; that the judge filed a frivolous claim against the parents for negligent supervision; and that he was less than candid in disclosing the facts relevant to the ACJC’s investigation. As a result, the municipal court judge was reprimanded.

MARIJUANA/DRUG ATTORNEY IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: APPELLATE DIVISION REVERSES A DRUG-RELATED CONVICTION ON FOURTH AMENDMENT GROUNDS

Wed, 04 May 2011 08:00:00 EST

An Appellate Division panel recently reversed a drug-related conviction on the grounds that the investigating and arresting police officers had violated defendant’s fourth amendment rights. The case was extremely fact sensitive.

At the suppression hearing, the investigating police officer testified that he received a report of gunshots in a specific neighborhood which was considered a high crime location, fraught with drug trafficking and gun violence. When he arrived in the area, the police officer and his partner observed bullet fragments on the dashboard of a vehicle. While there, he heard other shots in proximity to the motor vehicle. Thereafter, the police officer said that he posted himself at a nearby intersection and began to watch pedestrians and motor vehicles for suspicious conduct. At one point, defendant who was walking toward the police officer’s vehicle "abruptly stopped" and appeared to put something in his pocket. As a result, the police officer followed him while in his patrol vehicle. He then got out of the vehicle and asked defendant, where he was going which produced a reply that said, "going home." The defendant kept walking. The police officer then requested defendant to stop on three separate occasions. On the third occasion, defendant began to run and before entering his mother's home, defendant drop an object in proximity to the mother’s porch. After defendants’s arrest, the police officer returned to the porch area and retrieved 53 packages of crack cocaine.

In analyzing the fourth amendment issues raised by the defendant on appeal, the court first noted that the investigating police officers questioning of defendant was a permissible "investigatory inquiry.” However, when the police officer demanded the defendant to stop that “investigatory inquiry” or “field inquiry” escalated into a full-blown “investigatory stop.” At that point, the investigating police officer had to establish a "particularized suspicion" based upon his objective observations. Continuing, the court said that given the totality of the circumstances evident in the case at the time of the police officer’s demand to defendant to stop, the police officer did not have “particularized suspicion” and, as a result, the search was illicit.

DRUGS/MARIJUANA IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: OBAMA ADMINISTRATION MISTAKES UPTURN IN MARIJUANA USE WITH KIDS?

Tue, 03 May 2011 08:00:00 EST

Recently, a member of the Obama administration reported that the use of marijuana/pot in the younger generation has spiked. The general theme of the comment was that kids have been told for the last few years that marijuana/pot is medicine. Resultantly, it was said that it should be no great surprise that juveniles are now misinterpreting the danger of marijuana/pot.

The comment produce a bit of a controversy because the federal government’s statistics, between the years 2003 and 2008, indicate that the use of marijuana/pot by kids between the ages of 12 to 17 dropped seriously in every state that passed a medical marijuana law. Indeed, the statistics show that in six states (Alaska, Montana, Michigan, Nevada, New Mexico and Washington) marijuana/pot use has fallen by more than 20% and in Hawaii use by teenagers dropped by 30%. Moreover, people from NORML, when asked about the statement made by the member of the Obama administration said that they were aware of no studies that supported these allegations.

DRUG/MARIJUANA ATTORNEY IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: MEDICAL MARIJUANA INDUSTRY BOOMING

Wed, 27 Apr 2011 08:00:00 EST

There are fifteen (15) states and the District of Columbia that have passed medical marijuana laws. In 2009, the Justice Department issued a directive that said in essence that people in the medical marijuana industry would not be prosecuted under the federal statute if they complied with state laws. This directive was a factor that significantly enhance the development of the industry and investments in the industry. It is projected that there are approximately 25,000,000 people in the country who will be eligible to buy marijuana under these laws. Sales will probably exceed $1.5 million. In California, a company has been conceived to connect potential growers and distributors with investors.

Unfortunately, the IRS code does not allow medical marijuana operators to deduct business expenses from their profits. Moreover, a trend appears to be developing where people involved in the medical marijuana industry are being subjected to an inordinate number of audits from the federal government. One dispensary in Oakland, California that has paid more than $3 million in state federal and local taxes, had its bank account closed on three separate occasions and is currently facing an IRS audit. Further, some institutional lenders are reluctant to develop business relationship with marijuana dispensaries for fear of the scrutiny they may receive from the federal government and the negative public opinion these business relationships may create.

Within recent times a Democratic representative from Colorado has made a deliberate effort to loosen some of these political and financial constraints. Specifically, he has requested the Treasury Department to refrain from targeting banks who deal with business in the medical marijuana industry. He has also requested the IRS to allow people and entities in the industry to deduct business expense. Unfortunately the government has been rather resilient on both these issues.

DRUG/MARIJUANA ATTORNEY IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: LAW STUDENTS AUTHORIZED TO PRESENT CASES TO THE GRAND JURY

Wed, 27 Apr 2011 08:00:00 EST

For quite sometime, the Supreme Court has allowed law students to work as interns in programs sponsored by the government and its sub-agencies provided various reports are filed that identify the participants in the program and the nature of their assignment. The authority for these programs are granted under the Court’s rules which specifically allows third-year law student to "appear before a trial court or agency".

In 2004, a third-year law student made a presentation of a drug case before a Mercer County grand jury. The defendant was indicted for a number of marijuana offenses including the intent to sell a CDS in a school zone. Defendant was later convicted and sentenced to 17 years in prison without a parole opportunity. On appeal defendant's lawyer argued that the law student’s appearance before the Grand Jury was unauthorized because the presentation was not a "trial court or agency". The Appellate Division ultimately remanded the case to the trial court for further findings of fact. At that time, the trial court determined that the government had established that the law student qualified under the Court’s rules and that there was no defect in allowing the law student to appear before the grand jury. As a result of that ruling, the issue was returned to the Appellate Division. This time around the Appellate Division concluded that the law student’s presentation of the case before the grand jury was not defective and the affirmed the conviction and the sentence.

DRUNK DRIVING (DWI) ATTORNEY IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: SPECIFIC THERMOMETER REFERENCE IN THE CHUN OPINION NOT REQUIRED TO VALIDATE BREATH TEST

Thu, 21 Apr 2011 08:00:00 EST

In the landmark decision of State v. Chun, New Jersey’s Supreme Court endorsed the reliability of the Alcotest in drunk driving prosecutions. One aspect of that decision required the government to prove that the temperature of the solution used in the equipment was consistent with the machine’s specifications. Continuing, the Court also noted that in order to show operability of the equipment, the government was required to disclose 12 certain "non-core" documents, including the calibration reports of the “Ectro-Hart Digital Temperature Measuring System," which was a product specifically referenced by name and which was the manufacturer of the thermometer to be used to test the machine’s temperature. The report prepared by the special master that assisted the Court in rendering its decision, as to the use of the Alcotest in drunk driving cases, also referenced the Ectro-Hart thermometer by name. Last week, an appellate panel addressed a consolidated appeal where two drunk driving defendants contested the admissibility of an Alcotest, because the temperature probe used by the government was not a device manufactured by Ectro-Hart.

In analyzing the issue, the court concluded that the government was not compelled to use the Ectro-Hart device because the reference to that temperature probe was not critical to the Court’s decision in Chun. Notwithstanding, the court reiterated that the government had the responsibility to show that the Alcotest was in proper working order and further that one of the defendants in the appeal had raised sufficient controversy as to whether the temperature probe used in this breathtest was reliable enough to validate the test. .

MARIJUANA/DRUG ATTORNEY IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: IS NEW ENGLAND THE NEW BASTION FOR MARIJUANA REFORM?

Tue, 19 Apr 2011 08:00:00 EST

The New England states are comprised of Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island and Vermont. Maine, Rhode Island and Vermont have already implemented medical marijuana statutes. Maine and Massachusetts have decriminalize the possession of small amounts of marijuana. Rhode Island should be licensing medical marijuana dispensaries within the near future and its legislators are considering legalization and decriminalization measures.

Maine is now considering whether to decriminalize the possession of 5 ounces of marijuana (up from its current 2.5 ounces limit), as well as the possession of up to six plants. In New Hampshire, although its governor vetoed prior efforts to enact medical marijuana laws, legislators have passed yet another bill and now await the governor’s reconsideration.

Some observers have characterized the battles associated with these legislative measures with the same zeal as the famous skirmishes that occurred in this part of the country during the Revolutionary war. These commentators recognize that apart from the heritage of the Revolutionary war in this neighborhood, the area has been noted for "critical social thinkers”, including Thoreau and Emerson. The area is also the home of some of the leading colleges and universities in the country, including Brown, Dartmouth, Yale, Harvard, and a serious concentration of college students attending numerous other facilities. In short, New England is home of “activism” in more forms than some people care to think about, including the reformation of marijuana laws. In the words of one of the regions most noted drug reformers. “There are fewer people here and less bullshit."

DRUG/MARIJUANA LAWYER IN BERGEN (HACKENSACK), PASSAIC (PATERSON), AND MORRIS (MORRISTOWN) COUNTIES TRIAL COURT'S REFUSAL TO GRANT ADJOURNMENT TO ALLOW DEFENDANT TO VACATE PLEA IS REVERSED

Mon, 18 Apr 2011 08:00:00 EST

The defendant in this Appellate Division case was subject of two separate indictments . In one case, he was represented by a retained attorney, and in the other, a public defender . Both defense attorneys ultimately brokered a joint plea agreement that was acceptable to defendant . At the plea hearing, defendant was examined extensively by the trial court to determine whether be voluntarily waived his rights. On the day of sentencing, which is almost two months after the plea was placed on the record, defendant sought to withdraw it. He told the trial court that he had made efforts to secure the services of at least two lawyers to file an application to vacate the plea. One of the attorneys agreed to represent the defendant but was unable to attend the sentencing because of a scheduling matter. Resultantly, defendant requested an adjournment. To confound the issue, the retained counsel told the trial judge that grounded upon the defendant's claims of ineffective assistance of counsel he could no longer represent defendant at the sentencing. Notwithstanding, the special circumstances, the trial judge refused to adjourned sentencing .

In reversing the trial court's decision, the Appellate Division recognized the influence of a case newly decided by the Supreme Court titled State v. Slater . There, the Court held that while post- sentence motions to vacate a plea are subject to the “manifest injustice” standard, pre-sentence applications to withdraw pleas are influenced by the ‘interest of justice” standard. Moreover, the Court concluded that in order to come to terms with the “interest of justice” standard a plenary hearing should be required to analyze certain facts identified in the Court's decision. The Appellate Division reluctantly concluded that given the circumstances of the case, the defendant should have had an opportunity to establish the factual basis to withdraw his plate.

DRUG/MARIJUANA LAWYER IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: LAY WITNESS TESTIMONY IN A DRUG PROSECUTION, PART TWO

Fri, 15 Apr 2011 08:00:00 EST

As explained in one of our earlier blogs, the New Jersey’s Supreme Court recently reversed a school zone case conviction where the government tried to introduce lay opinion testimony. The core of the Court’s ruling was that the transaction was so “straightforward” that an opinion was not required; that the government's witness improperly identified the defendant by name in the hypothetical question that illicted the opinion; the government's predicate questions suggested that the witness was an expert; and that the opinion was actually an expression of the witnesses believe that the defendant was guilty.

In developing its opinion, the court observed that in the core of the lay opinion rule require the witness to have actually perceived the subject of his testimony and that the testimony was able to assist the jury in discharging its responsibilities. The court also listed a number of instances where lay witness opinion was appropriate. Some of those instances follow:

    1.     The speed of a motor vehicle grounded upon observation.
    2.     The speed of a motor vehicle grounded upon sounds.
    3.     The distance of a motor vehicle from an accident site.
    4.     Whether an individual is intoxicated or sober.
    5.     Under certain select circumstance, whether an individual is under the influence of narcotics.
    6.     The value of a personal property.
    7.     The meaning of certain street slang.
    8.     Footprint identification.
    9.     The point of impact in a motor vehicle accident.
    10.     Whether a neighborhood is a " high crime area."

The court also observed that the scope of the lay opinion rule was not limitless. To that end, it identified other circumstances where a lay opinion would not permitted:

    1.     Whether the damages to property was caused by a storm grounded upon after-the-fact observations.
    2.     The physical resemblance of a mother and child in a paternity action.
    3.     A "straightforward" drug transaction.

Finally, the court noted that although lay opinion could not be use under the circumstances of this case, it reminded the reader of another case in which a lay opinion grounded upon a police officers observation of a drug transaction would be permissible to establish probable cause.

DRUG/MARIJUANA LAWYER IN BERGEN (HACKENSACK), PASSAIC (PATERSON), AND MORRIS (MORRISTOWN) COUNTIES: SUPREME COURT CONTEMPLATES NEW RULES ON EYEWITNESS IDENTIFICATION TESTIMONY

Fri, 15 Apr 2011 08:00:00 EST

One of the most compelling evidential concepts in a criminal trial is eyewitness testimony. For many years now, the scientific community has readily recognize the frailties associated with this type of testimony. Unfortunately, the criminal justice system has been some rather slow in catching up with this well-received scientific principle. Indeed, for the last 20 or 30 years, the courts in this state and elsewhere have relied upon a two-level analysis to determine whether eye-witness testimony is admissible. The first question is whether the identification process was impermissibly suggestive. The second is whether the suggestiveness of the process produced an “irreparable misidentification.”

Last week, New Jersey’s Supreme Court heard arguments on a case involving eyewitness identification. In that case, the Appellate Division had granted the defendant a new trial because a law enforcement agent provided improper instruction to a witness during a photographic show-up. When the case found its way to the Court, the Court appointed a retired appellate court judge to render a report analyzing whether the current principles of law were outdated given the existing body of scientific thought. The court’s special counsel concluded that the procedure used for purposes of determining the admissibility of eyewitness testimony is no longer valid and further that "there is strong scientific evidence that mistaken identification of criminal suspects occur far too often.” Resultantly, this retired appellate court judge concluded that a reliability hearing should be conduct outside of the presence of a jury to test the integrity of the eyewitness testimony. He also found that the government should assume the initial burden of proof. The issue of whether the opinion of this special expert or some variation should be followed will soon be decided by the Court.

DRUG/MARIJUANA LAWYER IN BERGEN (HACKESACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: VIDEO PLAYBACKS DURING TRIAL APPROVED BY SUPREME COURT

Thu, 14 Apr 2011 08:00:00 EST

For many years, all trials in New Jersey were attended by a court reporter who created a verbatim record of everything said during the course of the trial. In a cost cutting measure that began ten (10) or fifteen (15) years ago, the Administrative Office of the Court began to equip courtrooms, with at first, audio recording devices and then audio/video recording devices. In those days when a court reporter was present a jury’s request to read back select portions of trial testimony was a relatively easy task. That change with the advent of audio/video recording devices.

Last week, the Supreme Court addressed a question of whether a video playback in a criminal prosecution was so fraught with prejudice as to require a reversal. The court rejected the notion. In rendering its decision, the Court determined that a jury is entitled to the best evidence available, so as to ensure justice. The Court said that video playbacks were presumptively favored when a jury requested a review OF prior testimony. In its decision, the court laid out certain rules that should be followed by a trial court when analyzing a read back request. They include the following:

    1.    That a playback request should generally be granted.

    2.    That trial judges can exert discretionary decisions on whether all or part of a playback should be required.

    3.    That the witness’s entire testimony should be played with both direct and cross examination.

    4.    That objections and side-bar comments should be removed.

    5.    That playbacks should be in an open court with everyone present.

    6.    That after the playback the judge should instruct the jurors not to give unnecessary weight to the playback but to consider all evidence.

    7.    That a precise records should always be created.

DRUG/MARIJUANA ATTORNEY IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: THE USE OF LAY OPINION IN A DRUG PROSECUTION

Tue, 12 Apr 2011 08:00:00 EST

Over 20 years ago, New Jersey’s Supreme Court concluded that expert opinions maybe received into evidence in cases involving drug transactions. The underlying philosophy of the court's. Ruling was that the nature of drug transactions are beyond the understanding of the average citizen, and to that extent, expert testimony may assist a jurors in their deliberation. Over the years, the Court has allowed experts to testify about; (A) the difference between drugs that are possess with an intent to distribute for those that are possessed for personal use; (B) the roles and importance of the roles played by the various actors in a drug transaction; (C) the nuances of drug transactions, including the purpose of packaging, the use of juveniles as quote mules" etc.

On the other hand, the Court has noted that if the transaction is "straightforward" in nature, i.e., and hand-to-hand exchange of money and drugs, an expert witness is not required and should not be subject of opinion evidence. Recently, the court addressed the question of whether and to what extent a lay witness testify about his opinion of a drug transaction. In that case, a surveillance team of local law enforcement agents observe the defendant involved in two furtive transactions which resulted in his arrest and search of the vehicle that produced packages of heroin and cocaine.

At trial, the prosecutor sought to establish from one of the investigating officers, who was not an expert in drug transactions, an opinion as to whether his observations led him to believe that the transaction was drug-related. When the defendant’s attorney objected, the prosecutor sought to justify the question by contending it was appropriate under the lay witness opinion rule. The trial court agreed with this prosecutor and the defendant was ultimately convicted. The conviction was confirmed on appeal. The issue before the Supreme Court was whether the lay witness opinion rule authorize the question. In conviction, the court concluded that the transaction was not beyond the understanding of the jurors; that the police officer improperly referenced the defendant in the hypothetical question; that the question and the answer was an expression of the witnesses believe that the defendant was guilty; and that the prosecutor’s preliminary questions about the officers training and education could have convince a jury that testimony was grounded upon an expert's opinion.

CONSUMER FRAUD IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: PIERCING THE CORPORATE VEIL IN CONSUMER FRAUD ACT CASES (CFA)

Thu, 31 Mar 2011 08:00:00 EST

Early this month, New Jersey’s Supreme Court entertained oral arguments on a Consumer Fraud Act (CFA) case where the central issue was whether a principal of the entity that did business with the consumer could be held personally liable for violation under the CFA.

In that case, a consumer sued a landscaping company and its principals, where a retaining wall built by the business entity collapsed and caused serious damage to the consumer’s property. At the trial level, the action against the principles was dismissed on a motion for summary judgment. On appeal, that decision was reversed. The core of the Appellate Division’s ruling was that the CFA clearly states that a "person" can be held responsible under the CFA and that since a "person" was defined to mean a principal or officer, the trial judge's decision was ill-founded and that was especially so given the legislative mandate that the CFA should be liberally construed.

Approximately 14 years ago, the Supreme Court decided a case titled Gennari v. Weichert Realty. There the court found individual liability for a real estate broker who took part in a misrepresentation made to a home buyer about the experience of the builder and the quality of the home to be sold. In the case currently before the court, it did not appear that the principle of the company played any active role in any of the events that triggered liability under the CFA. It also appeared from the questions and comment made by the Justices during oral argument that they believe the CFA was capable of reaching around the limited liability concept afforded many business entities to tag a principal for liability under the CFA.

LIQUOR LAW LIABILITY (DRAM SHOP) ATTORNEY IN BERGEN (HACKENSACK), PASSAIC (PATERSON), MORRIS (MORRISTOWN) COUNTIES: THE CONTRIBUTORY NEGLIGENCE OF A DRUNK DRIVER

Thu, 31 Mar 2011 08:00:00 EST

Whenever you prosecute an action under New Jersey’s Dram Shop Act, the liquor license holder will invariably seek to place the blame for the claim on the drunk driver (DWI). In addressing these contentions, it is important to know that the liability for the drunk driver’s (DWI) post-visibly intoxicated decision to drive can be imputed to the liquor license holder. To be seen below, there is a significant distinction between a drunk driver’s (DWI) post-visibly intoxicated decision to drive and his/her pre-visibly intoxicated decision to drink. Absent extraordinary circumstances, the drunk driver (DWI) is presumed not to have contributed to the losses resulting from a post-visibility intoxicated decision to drive and, while the drunk driver (DWI) may have some conceptual liability for the decision to become intoxicated, the practical influence of the facts in some cases may direct otherwise. Keep a close eye on those facts.

Apportioning fault between a liquor license holder and its intoxicated customer in a Dram Shop Case requires an analysis of the Dram Shop Act and the Comparative Negligence Act. In fact, the Dram Shop Act specifically provides that the Comparative Negligence Act “shall apply in all civil actions instituted pursuant to the provisions of this act.” The original version of the Dram Shop Act, enacted after the adoption of the Comparative Negligence Act, intended to bar recovery for individuals that became voluntarily intoxicated. In order to prevent such a harsh result, the Dram Shop Act permitted the application of the comparative negligence principles which was a decision anchored in the “public policy of the state.”

The issue of whether the Comparative Negligence Act applied to suits under the Dram Shop Act was first addressed by the Supreme Court in Lee v. Kiku Restaurant. There, the Court held: “that in dram-shop litigation a jury should apportion fault between the patron and the tavern based on the extent to which each party’s negligence contributed to the plaintiff’s injuries. Thus, in determining a patron’s fault, a jury may consider the extent to which the plaintiff’s injuries were caused by the patron’s conduct in drinking to the point of intoxication. Similarly, the jury will consider the extent to which the tavern’s actions in serving the patron after obvious intoxication contributed to the plaintiff’s injuries.”

Thus, a jury’s attention in a dram shop case should be directed to both post-and-pre-visibly intoxicated conduct.

Parenthetically, it should be recognized that these principles of comparative negligence apply to dram shop cases where the patron is the plaintiff or a joint tortfeasors. Lee, supra.

1. Post-Visibly Intoxicated Decision to Drive

In a rather succinct statement of law, the court in Lee, held that:

“once a jury determined that a tavern continued to serve drinks to a visibly-intoxicated patron, the jury should not be instructed, absent exception circumstances, to determine the extent to which the patron retained some capacity to appreciate the risk of engaging in the activity that led to the accident. If a tavern serves alcohol to a visibly-intoxicated patron, a court will ordinarily presume the patron’s lack of capacity to evaluate the ensuring risks.” (emphasis supplied).

Resultantly, a patron’s conduct after the point of intoxication shall not be considered when determining that patron’s comparative negligence. One case said rather clearly that “ordinarily a plaintiff’s decision to engage in conduct after the point of intoxication would not be evidence of the plaintiff’s own negligence.” See also, Steele v. Kerrigan; Petitto v. Sands Hotel & Casino, Inc., (a jury could not consider the patron’s failure to wear a set belt because the decision not to wear the seat belt was after “the point of intoxication.”)

2. Pre-Visibility Intoxicated Decision to Drink

If a jury determines that a liquor license holder has over-served a patron, its “responsibility may be diminished only to the extent that the [patron’s] drinking prior to the point of intoxication contributed to his or her inability to appreciate the risk of his or her behavior.”

In a case we recently tried for four weeks and returned over a two million dollar verdict, the drunk driver (DWI) testified that she left her vehicle at a tavern because she did not want to drink and drive and that the reason she went to another tavern with another couple was because they promised to take her home. It was this promise that induced her to continue to drink at the second tavern. In addition, when the couple drove the drunk driver to her vehicle at the first tavern, she was profoundly drunk and, as a result, they had an unyeilding responsibility to take her home, even if a jury concludes that the couple did not originally promise to take her home.

Resultantly, to the extent that this drunk driver (DWI) may have some liability for death of our clients’ husband and father because of her decision to drink prior to her post-visibly intoxicated state that liability was superceded by the couples negligence whether in the breach of their promise to take the drunk driver (DWI) to her home or their home; or the breach of their duty to take her home because of her elevated state of intoxication. Showaither v. Barilari, Inc., (superceding cause is one that entirely supersedes the original tortfeasors negligence). In short, the drunk driver (DWI) should have no pre-visibly intoxicated liability for her voluntary decision to drink because of the special facts of the case.

MARIJUANA/POT LAWYER IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: MARIJUANA BUSTS ESCALATE IN NEVADA

Mon, 21 Mar 2011 08:00:00 EST

Nevada's medical marijuana/pot laws were implemented in 2000, under circumstances where 65% of the voters endorsed the measure. Under the current statute, qualified users can cultivate and possess a limited amount of marijuana/pot for certified medical reasons. A qualified patient cannot sell or buy marijuana/pot. He/she can only grow the plants.

Notwithstanding the clear instructions of the statute, individuals in the state have opened commercial dispensaries. Obviously they are illegal. Recently, the federal government embarked upon a collection of raids to close these dispensaries. These raids produced 11 arrests, where the suspects were charged with possession of a CDS and money-laundering. In addition, local law enforcement agents in Las Vegas have embarked upon their own aggressive program of eradicating illegal grow houses. There it was reported that the city maintained 118 marijuana/pot grow houses, which was a 100% increase from prior years. This new effort has produced a 43% increase in arrest, at a cost to the city of $500,000.

CONSUMER FRAUD IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: NEW LEGISLATION EXPECTED TO CURTAIL CONTRACTS LIMITING CONSUMER'S ACCESS TO THE COURTHOUSE AND THE CONSUMER FRAUD STATUTE (CFA)

Mon, 21 Mar 2011 08:00:00 EST

For many years, New Jersey's courts have endorsed contract terms that can limit the consumer’s access to the courthouse with provisions that require arbitration. The general philosophy of these cases is that the arbitration process is a favored process, largely because arbitration avoids the profligation of public and private resources.

Last summer, the Supreme Court addressed the validity of a clause in a consumer contract that limited the liability of a gym for injuries resulting from the use of the gym’s equipment or when participating in its classes and concluded that clauses of that nature are valid, stating in essence, that "when a party enters into a signed, written contract, that parties presumed to understand and assent to its terms, unless fraudulent conduct is suspected."

This case has motivated certain legislators to draft a bill that would invalidate any consumer contract that would require the consumer to waive rights under various statute conceived to protect the consumer, including New Jersey’s Consumer Fraud Act. (CFA). The statute would also render invalid any contract that would bar a consumer from reporting illicit conduct to various law enforcement agencies.

MARIJUANA/POT LAWYER IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: MONTEL WILLIAMS DETAINED IN MULWAUKEE FOR A WOODEN PIPE

Fri, 18 Mar 2011 08:00:00 EST

The once popular talk show host Montel Williams has been suffering from the debilitation of multiple sclerosis for over 12 years. That condition precipitated his decision to leave public life. Williams readily admits that he uses marijuana/pot on a daily bases to control some of the symptoms resulting from the horrible disease.

Recently, he was detained in an airport in Milwaukee where officials found a wooden pipe in his luggage. He was detained for an hour where four police officers were involved in the investigation. Although the pipe was free of marijuana/pot residue, he was still required to pay a fine of almost $500. Williams was rather miffed at the situation and said, "it's very interesting that a wooden pipe that tested negatively took away the actions of security officials that were there to protect and serve the country against the potential of terroristic attacks, bombs, and other things".

MARIJUANA/POT LAWYER IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: ESCALATION IN REHAB ADMISSIONS FOR MARIJUANA/POT SMOKERS

Fri, 18 Mar 2011 08:00:00 EST

The United States Substance Abuse Mental Health Services Administration has observed that in the last 10 years, drug treatment admissions for the use of marijuana/pot has escalated significantly. Specifically, the study concluded that rates of admission for marijuana/pot abuse rose 30% in the nation with the highest admission rates in New Jersey, New York and Pennsylvania, as well as some other north-central states. The National Institute of Health contends that almost 1,000,000 people a year seeking treatment for marijuana/pot abuse.

It is said that this significant increase of marijuana/pot users admitted into a drug rehabilitation program is linked to the criminal justice system. It has been said that 40% of the drug treatment admissions in this country are precipitated by referrals from the criminal justice system. Interestingly, more than 40% of marijuana\ pot admittees have stated they did not use marijuana/pot within 30 days of their admissions and 16% said they used it three times or less in the same period of time.

MARIJUANA/POT LAWYER IN BERGEN (HACKENSACK), PASSAIC (PATERSON), AND MORRIS MORRISTOWN COUNTIES: PARAPHERNALIA LAWS USED TO CURTAIL CONSUMPTION IN STATES WITH MEDICAL MARIJUANA LAWS

Thu, 17 Mar 2011 08:00:00 EST

In New Jersey, possession of drug paraphernalia is a disorderly persons offense that can requiring a fine of $1000 and a jail term of six months. A conviction for the same offense, in Pennsylvania, which seems to have the harshest penalties in the nation for paraphernalia possession, can produce a jail term of one year. Under that state’s paraphernalia law a first offender will generally receive a period of probation for the possession of drug paraphernalia. A second offense, however, can result in jail time.

The law enforcement community in Arizona seems to be using its paraphernalia laws to curtail the use of marijuana/pot under the state’s medical marijuana/pot statute. Under that state’s paraphernalia statute, one of the key terms is the word "drug". Notably, the statute does not use the term “illegal drugs." Thus, a person can be convicted of possession of any instrumentality that can facilitate, among other things, the ingestion of marijuana.

Resultantly, possession of drug paraphernalia, to facilitate the ingestion of marijuana/pot authorized under the state’s medical marijuana statute, may be illegal.

DRUNK DRIVING ATTORNEY (DWI/DUI) IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: APPELLATE DIVISION REFUSES TO REMAND DRUNK DRIVING CASE TO ALLOW TRIAL COURT TO CLARIFY ITS RULING ON A COMMENT RELATING TO REASONABLE DOUBT

Thu, 17 Mar 2011 08:00:00 EST

The defendant in a drunk driving (DWI) case, recently analyzed by the Appellate Division, was stopped in Fairfield because a police officer saw the defendant strike a curb, run a red light and drive rather slow on a major highway. The defendant seem disoriented, failed field sobriety tests and was observed staggering as she walked. A breath test proved negative for alcohol consumption. A urine test, however, establish the presence of codeine and a barbiturate.

The defendant was convicted in the municipal court, even though she establish that the prescription drugs she was required to take produced the positive results of the drugs found in the urine analysis. Ostensibly, the municipal court concluded, as it must, that a defendant can be convicted of driving while intoxicated, even where medication is legitimately prescribed, if that medication impairs defendants psycho-motor skills. On appeal, defendant managed to convince a Superior Court judge to allow the testimony of an expert to establish that the erratic driving discerned by the investigating police officer, at the time of the defendant's arrest, was grounded upon other medical problems including Lyme disease and another condition that causes dizziness, disorientation and intellectual dysfunction. This expert also testified that the medication taken by the defendant could not have affected her driving because her body had adapted to the drugs for long-term use. Notwithstanding, the Superior Court judge affirmed the municipal court’s decision and found the defendant guilty. In rendering his decision, however, the Superior Court judge noted that he found reasonable doubt and that “the defendant cannot sustain the burden of proving beyond a reasonable doubt the defense offered in this case."

The defendant appealed. The government asked the Appellate Division to provide for a limited remand to allow the Superior Court judge to determine if he had misspoke when he observed that reasonable doubt existed and that defendant had the burden of proof. The appellate panel rejected the request and observed, ""we do not accept that a finding a reasonable doubt is merely a poor worded choice or result of some confusion in the court’s mind.".

MARIJUANA/POT LAWYER IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: MONTANA TO REPEAL MEDICAL MARIJUANA LAW?

Tue, 15 Mar 2011 08:00:00 EST

Qualified medical marijuana/pot users have quadrupled in Montana in the last year. Republicans, who now make up a majority of the elected officials in that state are moving to repeal its medical marijuana laws, which is now six years old. These politicians contend that the statute is advancing recreational use of marijuana/pot and other criminal conduct. If successful, Montana will be the first state of the 15 states to enact such statutes to repeal these laws. A portend of this movement was first found in the college town of Bozeman, where the city Council passed an ordinance, which significantly restricted marijuana commerce in the downtown district.

Opponents to the measure, cite the potential loss of significant revenues generated from the taxes imposed on the sale of medical marijuana products, as well as the postive economic influence the law has had on various industries that are supplying medical marijuana companies with products and services, including the state’s largest utility company. One grower has said that he spends over $25,000 a month for the electricity needed to produce the light used to grow the plants. Others have argued that it is patently unfair for the government to repeal the statute, given the significant start-up cost for businesses associated with the growing and distribution of medical marijuana. Indeed, it has been projected that millions of dollars have been invested in the industry, already. One politician observed that "Now the legislature is saying- “too bad, you lose" and “that is a bad message to send when we are in the doldrums."

LEGAL MALPRACTICE LAWYER IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: ATTORNEY INVESTIGATED FOR NOT TURNING OVER FEES TO FORMER LAW FIRM

Mon, 14 Mar 2011 08:00:00 EST

The state Supreme Court recently decided a case involving an attorney that had retained fees belonging to his former law firm. Fortunately for the attorney, the court determined that the nature of the attorney’s conduct was such that a disbarment was inappropriate punishment and referred the case to the Disciplinary Review Board (DRB) for further assessment as to punishment.

The lawyer subject of the controversy was previously employed by Ravin Sarasohn. When he and others defected to another law firm, Ravin filed a lawsuit, under circumstances where the attorney had a claim against Ravin for $30,000 in back salary. Before the attorney left the Ravin law firm, he was working for client that had an open invoice. Once situated with the new law firm the client send the lawyer a check in excess of $200,000. Later, the attorney sent a named partner in Ravin a check under a letter that indicated he withheld over $35,000 for his unpaid salary. The partner of Ravin filed a grievance against the attorney. The Office of Attorney Ethics reviewed the matter and recommended a reprimand. The DRB, however, return the case back to the OAE and instructed it to analyze whether there was a “knowing misappropriation" which would have required disbarment. The OAE stood its ground and determined that the conduct was less serious.

The controversy reached the Supreme Court, which ordered the appointment of a special investigator. That investigation ultimately determined that a misappropriation complaint was not warranted. Thereafter, the court instructed the DRB to make a determination for the appropriate discipline to be imposed on the attorney.

EXPUNGEMENT LAWER IN BERGEN (HACKENSACK), PASSAIC (PATERSON), AND MORRIS (MORRISTOWN) COUNTIES: EXPUNGEMENT STATUTE DOES NOT BAR A TRUTH DEFENSE IN DEFAMATION ACTION

Fri, 11 Mar 2011 08:00:00 EST

The core of new Jerseys expungement statute is to provide a new lease-on-life to one-time offenders who have disassociated themselves with criminal activity. Last month, the Supreme Court analyzed the influence of an expungement statute in the context of a defamation action where the defendants asserted the “truth defense".

Factually, the controversy had its roots in a political brouhaha in Hudson County, where a Democratic organization published a statement that said, in essence, that one of the people coordinating a politician’s election campaign was a "drug dealer who went to jail for five years selling coke near a public school." When the person subject of the publication filed a lawsuit against the organization and others, the defense was that the plaintiff was actually convicted in 1992 of a second degree, possession with intent to distribute drugs and received a five-year term of imprisonment. The plaintiff countered by claiming that he had earlier received an expungement and that as a result the truth defense was not available to defendants.

The Supreme Court rejected the plaintiff's contention. The core of its decision was grounded upon the importance of free speech, especially in the rough-and-tumble business of politics. It also noted that the expungement statute did not allow for "the wholesale rewriting of history", and specifically noted that the expungement statute has many exceptions to its rule of non-disclosure, including where applicants seek jobs with the judiciary and law enforcement agencies.

LEGAL MALPRACTICE ATTORNEY IN BERGEN (HACKENSACK), PASSAIC (PATERSON), AND MIORRIS (MORRISTOWN) COUNTIES: CLAIMS OF ETHNIC BIAS AGAINST JUDGE REJECTED

Thu, 10 Mar 2011 08:00:00 EST

One component of New Jersey's drunk driving (DWI) statute provides that a person convicted of driving while intoxicated. "shall have no cause of action for recovery of economic or non-economic loss sustained as a result of an accident,". In a recent case, an appellate panel analyzed whether a drunk driver could prosecute a civil claim against a bar under New Jersey's so-called Dram Shop Act.

The court opened its analysis in this case, by noting that although the law requires judges to ascribe, ordinary meaning to plain words used in a statute, it decided that, despite the direct language of the section of the drunk driving (DWI) statute recited above, a drunk driver could assert a claim against the bar for serving him/her while visibly intoxicated. The court's reasoning began with a recognition that this provision in the drunk driving (DWI) statute was conceived to reduce the cost of automobile insurance and since an automobile insurance policy was not involved in the drunk driver’s claim the underlying purpose of the statute should not apply. Next, the court determined that if the drunk driver was barred from asserting its claim, liquor license holders would be immune from certain instances of liability, which was inconsistent with the state's policy to reduce incidents of drunk driving. Finally, the court focused on an earlier decision, which addressed the question of whether this section of the drunk driving (DWI) statute could prevent the liability of a social host who served an underage claimant injured in an automobile accident that ultimately produced a drunk driving (DWI) conviction for the claimant. In that case, the court concluded that the underage claimant had a cause of action against the social host despite the instructions of the drunk driving (DWI) statute prohibiting people convicted of drunk driving (DWI) from asserting civil claims for injuries received while intoxicated.

Just last week the Supreme Court decided to review this case.

DRUNK DRIVING (DWI) LAWYER IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: DRUNK DRVIER CAN SUE BAR DISPITE STATUTORY PROHIBITION

Wed, 09 Mar 2011 08:00:00 EST

MARIJUANA/POT ATTORNEY IN BERGEN (HACKENSACK), PASSAIC (PATERSON), AND MORRIS (MORRISTOWN) COUNTIE: WARRANTLESS SEARCH OF MOTOR VEHICEL FOUND TO BE UNLAWFUL

Tue, 08 Mar 2011 08:00:00 EST

In 2009, the New Jersey Supreme Court changed the landscape in cases involving automobile stops. In essence, the Court ruled in the case of State v. Pena-Flores, that in order to justify a warrantless search of a motor vehicle, the government must establish that the stop was unexpected; that there was probable cause; and, that they were special circumstances that prevented the government from obtaining a warrant. Since that time, a number of cases have been decided by the Appellate Division where the court has ruled that the government’s search of a motor vehicle was illicit.

Last month, another Appellate Division panel found that the government failed to establish the factual predicates required by Pena-Flores. In that case, a police officer in an unmarked vehicle observed defendant’s vehicle speed through a red light. For reasons not disclosed, the police officer did not want to stop the defendant in an unmarked car. Nonetheless, he continued his surveillance. At one point, this first police offer contacted a second officer in a marked car. When the second officer saw the defendant run a stop sign, he pulled the vehicle over. Shortly thereafter, an additional marked car, along with a K-9 unit responded to the stop site. The police officers claimed that they detected an odor of raw marijuana and that the defendant appeared nervous. The defendant was patted down and in the process $4000 in cash was discovered. In addition, the dog with the K-9 unit identified the presence of narcotics. The vehicle was searched and bags of marijuana, other drugs and distribution paraphernalia were found along with a machete. At the suppression hearing, the investigating police officer said that he did not make an effort to obtain a warrant because the stop occurred close to defendant's home and he was afraid that a family member would obtain access to the vehicle with another key. Moreover, the police officer said that, although he was aware of the opportunity to obtain a telephonic warrant, he did not request one.

The Appellate Division found the police officers’ conduct illicit. Noting that the stop was not late at night; that it was in a residential area; and, that there were four police officers at the stop site. Resultantly, the court concluded that an effort to obtain a telephonic warrant was required.

MARIJUANA/POT LAWYER IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: ILLEGAL SENTENCE RULE PUSHED A SIDE IN MARIJUANA PROSECUTION

Mon, 28 Feb 2011 08:00:00 EST

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

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

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

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

DWI/DUI LAWYER IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: ALCOTEST RESULTS DEFECTIVE BECAUSE OF THE USE OF AN INFERIOR THERMOETER

Thu, 24 Feb 2011 08:00:00 EST

In State v. Chun, New Jersey’s Supreme Court endorsed the reliability of the Alcotest machine in the prosecution of drunk driving (DWI) cases. In a rather lengthy and well-reasoned decision, the court set-out certain guidelines and conditions before the results of an Alcotest can be put into evidence. In one part of the opinion, the court required the government to measure the temperature of the control solution on a bi-yearly basis and also required that the documents associated with this testing be provided to defense counsel during the discovery process. In analyzing this issue, the court made repeated references to a thermometer manufactured by Fluke Corp. Since the Chun opinion, the State Police, who was commissioned to test and calibrate the Alcotest, decided to use a thermometer manufactured by Control Corp. That decision was prompted by the fact that the instrument manufactured by Control Corp.,was a lot less expensive than the one produced by Fluke Corp.

The use of an inferior thermometer has prompted a number of decisions from various trial courts. Recently in Atlantic County, a judge reversed the drunk driving (DWI) conviction of a defendant because the government used the thermometer manufactured by Control Corp. In its decision, the trial court observed that the Supreme Court was very selective in identifying the thermometer manufactured by Fluke Corp., and concluded that since the Court did not say that other similar devices would be acceptable, the government’s decision to use a Control Group thermometer required the case to be reversed.

Earlier decisions on this issue have already found their way to the Appellate Division. Indeed, just two weeks ago, the Appellate Division received oral arguments on this very question. A decision is expected shortly.

DWI/DUI LAWYER IN BERGEN (HACKENSACK), PASSAIC (PATERSON), AND MORRIS (MORRISTOWN) COUNTIES: LEGISLATORS MOVE TO ALLOW REFUSAL CONVICTIONS TO ENHANCE DWI PENALTIES

Thu, 24 Feb 2011 08:00:00 EST

Decades ago, the courts in New Jersey determined that a prior conviction for refusing to submit to a breathtest could not be used to enhance the penalties in a subsequent drunk driving (DWI) conviction. Last year, an Appellate Division panel revisited that well-established principle of law and concluded that the underlying philosophies of the principal were no longer valid and, as a result, ruled that a refusal conviction could enhance the penalties for a subsequent drunk driving (DWI) conviction. That case was taken to the Supreme Court and three it was ruled that, despite the Appellate Division’s thoughts the contrary, a refusal conviction could not be used to enhance penalties in a drunk driving conviction. One of the reasons offered by the court was that the legislative scheme associated with drunk driving (DWI) cases did not contemplate penalty enhancement for a prior refusal conviction.

Recently, two Monmouth County legislators sought to amend the drunk driving (DWI) statute to require a prior refusal to be considered as an enhancement factor. One noted commentator pointed out that given the statutory scheme and a directive from the Supreme Court with respect to plea bargaining in a drunk driving case, a defendant with only a refusal conviction would have had to be acquitted of the underlying DWI accusation and to that extent the new amendment would blink and reason.

MARIJUANA/POT LAWYER IN BERGEN (HACKENSACK), PASSAIC (PATERSON), AND MORRIS (MORRISTOWN) COUNTIES: POLYGRAPH EXPERT'S TESTIMONY REQUIRES A NEW TRIAL

Wed, 23 Feb 2011 08:00:00 EST

Historically, the courts in this country have consistently rejected the use of polygraph test results in the prosecution of criminal cases. This judicial philosophy is grounded upon a well-recognized principle that says, in essence, that the polygraph machine is just not reliable enough.

Over two decades ago, New Jersey’s Supreme Court concluded that, notwithstanding the polygraph’s lack of reliability, results from a polygraph test can be put into evidence in a criminal prosecution if both and the defendant, with counsel, and the government agree. That principle of law was reaffirmed approximately 2 years ago.

In a case decided by the Appellate Division last week, the court concluded that despite a stipulation authorizing the admissibility of a polygraph test, the government still had a responsibility to establish that the test were reliable.

In addition, the court castigated a government polygraph expert who sought to convince the jury that the polygraph process was unassailable and entirely capable of determining people who were “guilty or innocent” or “truthful or lying.” On this issue, the Appellate Division noted that although an expert in a criminal case may offer an opinion as to whether a defendant committed the crime, that expert cannot offer an opinion as to defendant’s “guilt” because that type of testimony truly invades the prerogative of the jury.

DRUG ATTORNEY IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: WAIVER OF RIGHT TO TESTIFY AT FIRST TRIAL DOES NOT PRECLUDE TESTIMONY IN A SECOND TRIAL

Wed, 19 Jan 2011 08:00:00 EST

In a recent case involving the possession of a weapon by a convicted felon, the Appellate Division was required to analyze the waiver of a defendant’s right to testified in consecutive trials.

The government’s accusations related to the defendant’s possession of a weapon as a felon. The factual core of the case related to a controversy involving a group of people where defendant slapped two women. At a later confrontation, defendant sought to apologize to the two women. While walking away, however, he waved a gun.

The case was bifurcated into two trials. The first trial related to the question of whether defendant was in possession of the weapon for an illicit purpose. The second trial was to establish whether he was in possession of the weapon as a convicted felon.

At the first trial, the court determined that the slap to the two women would be put into evidence to establish the defendant’s motive for bringing the weapon to the second confrontation. The defendant later waived his right to testify at trial because of a ruling from the trial judge that allowed the government to cross-examine him about his prior convictions, if he testified.

At the second trial, defendant opted to testify. At that point, the trial judge determined that defendant could not testify because he had already given up his right to testify in the first trial. The defendant was convicted of both offenses.

On appeal, the court noted that the trial judge precluded defendant from testifying at the second trial because he was under the incorrect assumption that the second trial was merely a subsequent phase of the first trial. Resultantly, the court concluded that the trial judge’s decision to prevent defendant from testifying at the second trial was erroneous. Although the Appellate Division sustained the possession of weapons offense subject to the first trial, it reversed the jury verdict in the second trial and ordered a new trial.

MARIJUANA/POT ATTORNEY IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: DRUG CONVICTION REVERSED FOR FAILURE TO SPECIFICALLY DISCLOSE DEPORTATION POSSIBILITIES

Fri, 07 Jan 2011 08:00:00 EST

In 2009, the United States Supreme Court published two decisions which said that non-citizens must receive specific and unequivocal warnings about the prospects of deportation resulting from a criminal conviction.

A few weeks ago, two separate appellate panels in New Jersey decided cases that address this very issue. In one case the defendant was a Canadian citizen convicted of possession of a CDS within a school zone, as well as the unlawful possession of a weapon. Each of these offenses were third-degree crimes. As a result of a plea arrangement, the defendant signed a plea form that said, in essence he “may” be deported as a result of his conviction. During the allocution before the trial court, the judge said, in essence, that he did not know if the defendant would be deported because of the conviction. The judge further told the defendant that, if he had any immigration problems in the future, he could not come back and request to retract his plea. The defendant later appealed the trial judge’s sentence claiming that it was excessive. While on appeal, the defendant was subjected to deportation proceedings. This event caused the defendant to argue before the appellate court that the instructions he received from the sentencing court relative to the prospects of deportation was not unequivocal. The appellate court remanded the case to the trial court to determine whether the defendant could retract his plea given the circumstances of the case.

The second defendant was found guilty of a third-degree possession of the CDS in 2000. He too signed a plea form that said in essence that he “may” be deported because of his plea. Later, the defendant made an application for permanent residency which was denied because of his earlier conviction. The defendant then file a post conviction relief application claiming ineffective assistance of counsel. That application was denied at the trial level. The defendant appealed. That case was also remanded, with instructions from the appellate court, to require the trial court to allow the defendant the opportunity to present evidence at a plenary hearing as to why his plea should be retracted. The court noted that the record did not disclose whether defendant’s attorney specifically informed him of the consequences of a conviction on his status as an immigrant.

LEGAL MALPRACTICE ATTORNEY IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: SANCTIONS FOR MISSING A COURT DATE REVERSED ON APPEAL

Fri, 07 Jan 2011 08:00:00 EST

The effective and efficient administration of the law requires faithful and prompt attendance at all schedule court dates. In a recent child custody case, an appellate panel reviewed a trial court’s decision to impose over $25,000 in sanctions against a litigant for failing to appear on a scheduled court date.

After a preliminary phase of discovery, the trial judge scheduled a plenary hearing to begin on a date certain. Before that hearing, however, the mother told her attorney that she would not attend because she was concerned about losing her job and that she felt harangued by her former husband. The trial judge issued an order to show cause to determine whether she should be excused from the scheduled date. When she failed to appear, the judge held her in contempt. The husband’s attorney then submitted a certification establishing that he spent over $56,000 in two years of litigation. Ultimately, the trial court issued an order in favor of the husband requiring the wife to pay him over $25,000 of his legal fees.

The appellate panel determined that $25,000 sanction for non-appearance was an abuse of discretion because it was unreasonable. Resultantly, the case was remanded to the trial court to reconsider its ruling.

MARIJUANA/POT ATTORNEY IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: CAN FAULTY INFORMATION INVALIDATE A WARRANTLESS SEARCH?

Thu, 06 Jan 2011 08:00:00 EST

In the first week of December 2010, New Jersey’s Supreme Court entertained oral arguments pointed to a warrantless search grounded upon faulty information provided by a police dispatcher.

The defendant in the case was one of a number of people stopped by a local law enforcement agent for riding a bicycle on the sidewalk. During the stop, the investigating officer called the police dispatcher to obtain profile information relative to each of the bicycle riders. The dispatcher told the investigating police officer that the defendant had an open warrant in another town for driving with a false driver’s license. Resultantly, the investigating police officer arrested the defendant and in the process, he located crack cocaine and marijuana on the suspect’s person.

Unfortunately, the dispatcher failed to tell the investigating police officer that the individual with the open arrest warrant had a first name that differed in spelling from that of defendant, that they had different dates of birth and that the person subject of the open warrant lived in Los Angeles.

Ultimately, defendant pled guilty to the criminal offenses and reserved his right to appeal the Fourth Amendment issue. An appellate court reversed a trial court’s decision to suppress the evidence under the Fourth Amendment noting that New Jersey does not have a “good-faith exception” to the exclusionary rule and specifically concluded that “the exclusionary rule must be applied beyond the officer in the field and to police employees who acts unreasonably in applying critical, but inaccurate or incomplete information”.

Oral arguments were presented to the Supreme Court on December 1, 2010. The questions pointed to the litigants by the Court seemed to focus on whether a mistake, consistent with the one in the case before the court, was sufficient to trigger the exclusionary rule.

DRUNK DRIVING/DWI ATTORNEY: BERGEN (HACKENSACK), PATERSON (PASSAIC) AND MORRIS (MORRISTOWN) COUNTIES: AN APPELLATE COURT REQUIRES THE TURNOVER OF SOPHISTICATED INFORMATION RELATING TO THE ALCOTEST DURING THE DISCOVERY PROCESS IN A DRUNK DRIVING CASE

Wed, 05 Jan 2011 08:00:00 EST

In the landmark decision of State v. Chun, New Jersey’s Supreme Court required the government to turnover specifically defined categories of information during discovery in a drunk driving case. In a case titled State v. Maricic, an appellate panel recently reviewed a case where a drunk/DWI driving defendant sought, among other things, the downloaded results from the Alcotests and information relating to the cell drift algorithm. The municipal court judge denied the defendant’s application. That decision was affirmed by the Law Division. On appeal, the Appellate Division reversed both courts.

In framing its opinion the Appellate Division readily recognize that defendants in all drunk/DWI driving cases are entitled to all discovery listed in R. 3:13–3(a), as well as other information that addresses whether the breathalyzer was in proper working order at the time of defendant’s arrest. It also noted that the philosophy attending pretrial discovery was to allow the fact-finder to have all relevant information available, so as to reach the truth.

The court specifically rejected the government’s contention that in order to be responsible to produce the discovery material sought in the case, defendant had to prove that either the testing process or the equipment was flawed. It also contended that the defendant’s specific discovery was not found within the list of so-called “foundational document” identified by the special master who assisted the Supreme Court in rendering the Chun decision. That argument was rejected as well.

DRUG ATTORNEY IN BERGEN (HACKENSACK), PATERSON (PASSAIC) AND MORRIS (MORRISTOWN) COUNTIES: CAN A TACTICAL DECISION BY A TRIAL ATTORNEY CAUSE A REVERSAL UNDER POST-CONVICTION RELIEF APPLICATION

Wed, 05 Jan 2011 08:00:00 EST

Paul Bergrin, a former attorney who is now in prison because of a federal indictment charging him with arranging the murder of a potential witness in his client’s drug prosecution case, is at the core of a controversy recently decided by the Appellate Division in an application for post-conviction relief (PCR), filed by one of Bergrin’s former clients.

In the case before the court, Bergrin’s client was charge with a first and second-degree drug distribution. The case was confounded by defendant’s exposed to an extended term of imprisonment because of a prior-first degree drug conviction.

The government’s plea offer required defendant to plead to the first and second degree distribution offenses and to expose himself to a $200,000 fine for the first-degree offense and a $100,000 fine for the second degree offense under the Anti-Drug Profiting Act (ADP). In exchange, the government agreed to waive extended term liability. At the sentencing, Bergrin did not appear, but sent an associate. The associate agreed with the trial court that the fines were warranted given the circumstances of the case. At that point, defendant objected noting that he was only aware of a $100,000 fine and not an additional $200,000 fine.

Later, a public defender filed a PCR on behalf of defendant claiming Bergrin failed to provide effective legal assistance in that he failed to file a motion to abate the ADP fines. The Public Defenders PCR application did not argue, however, that Bergrin’s assistance was also ineffective because he failed to file a motion to suppress evidence or that the ADP fines were not contemplated by the client. When the trial judge rejected the argument on the original PCR application, the Public Defender’s Office returned with a second motion that inclined the two additional arguments identified above. That motion was rejected by the trial court as untimely.

The Public Defender Office appealed that decision and the Appellate Division remanded the case with instructions to the trial judge to determine if both Bergrin and the Public Defender who prosecuted the original PCR application provided defendant with ineffective legal representation.

MARIJUANA/POT ATTORNEY IN BERGEN (HACEKSACK), PATERSON (PASSAIC), MORRIS (MORRISTOWN) COUNTIES: THE SCHOOL ZONE STATUTE AND ITS EXCEPTIONS

Tue, 28 Dec 2010 08:00:00 EST

New Jersey’s Criminal Code requires rather harsh penalties for convictions where drugs are distributed or possessed with the intent to distribute while in a school zone. The general philosophy of the School Zones Statute (Statute) was pointed to public and private elementary, middle and high schools. Excepted from the Statute’s terms, however, are day-care centers and pre-schools. Notably, the Statute is altogether different from its federal counterpart which prohibits drug transactions in a broader range of protected areas, including video arcades, swimming pools and even colleges.

A few weeks ago, arguments were entertained by the Supreme Court as to whether the statutory exemptions applied to a facility where kindergarten students attended. In that case the defendant was convicted of selling cocaine to an undercover police officer within 1000 feet of a school in New Brunswick. Although the school’s principles business purpose was to accommodate pre-school students, it also maintained a kindergarten class of approximately ten (10) children. At the trial level, the court determined that the school was an “elementary school” as contemplated by the Statute. As a result of that ruling, defendant entered a conditional plea reserving for appellate purposes the question of whether, under the circumstances of that case, he could be convicted under the Statute. On appeal the conviction was reversed. There the court determined that simply because this pre-school facility had a ten (10) children kindergarten class could not expose the defendant to liability under the statute.

Some of the arguments and comments of the Court during oral arguments follow:

        •    The government argued that the Appellate Division decision frustrated rather than advance the legislative intent of the statute. On this point, one of the Justices observed that the statute could have been drawn with clearer language.

        •    Another Justice question whether a person could reasonably discern whether the school was in elementary school, and if not, did that person have reasonable notice of his/her criminal activity.

        •    The defendant’s attorney argued that the Statute was conceived to protect children who could be released on their own into the community and not to protect children who are going to be picked-up and dropped-off by their parents.

        •    One of the Justice asked him whether the Statue would apply if the school was merely dedicated to kindergarten students.

CONSTRUCTION LAWYER IN BERGEN (HACKENSACK), PATERSON (PASSAIC) AND MORRIS (MORRISTOWN) COUNTIES: THE DEFENSE OF INTERFERENCE WITH PERFORMANCE IN A CONSTRUCTION CASE

Thu, 23 Dec 2010 08:00:00 EST

It seems to be well settled that if one party to a contract prevents or hinders another by making performance impossible, the person victimized by that type of conduct may consider the contract breached and recover damages.

That doctrine was recently applied in a Appellate Division case involving the construction of a nursing school. In that case, the general contractor had engaged a subcontractor to grade and install walkways, curbs and parking lots. The subcontractor ultimately walked off the job. Initially, his claim was that the general contractor failed to make necessary payments. The general contractor alleged that the subcontractor failed to complete the job, and otherwise performed improperly. Later, the subcontractor contended that toward the end of the job, the grading and elevation at a location on the construction site were different then the job’s specifications. Discussions follow between the parties as to whether the condition would be subject of analysis by the various engineers involved in this project. When both the landowner and the general contractor balked at producing an engineer, the subcontractor told the general contractor that it intended to have its own engineer analyze the problem and add the cost of the analysis to the contract value. During this time, a number of vexatious e-mails were exchanged that were, in the words of the court, "closer to nasty than civil". Moreover, at a meeting, the principals of the general contractor and subcontractor's got into a heated argument where the general contractor’s principal grabbed the arm of the subcontractor’s principal. Evidence at trial indicated that the encounter produced a bruise on the arm of the subcontractor’s principal.

During the trial, the parties seem to have expanded upon their original contentions. Particularly, the subcontractor argue that its failure to perform was a grounded upon the duress produce from the physical encounter between the principals of the contractor and subcontractor. There, the court noted that where one party threatens or makes unreasonable demands to interfere with another party’s performance, the breach is one of implied covenant of good faith and fair dealing. Notwithstanding the Appellate Division endorsed the trial court's decision that the encounter was not serious enough to excuse the subcontractor’s non-performance because there was no threat to inflict future bodily harm, if the subcontractor return to the site

MARIJUANA/POT LAWYER IN BERGEN (HACKENSACK), PATERSON (PASSAIC) AND MORRISTOWN (MORRIS) COUNTIES: THE COMMUNITY CARETAKER EXCEPTION TO THE WARRANT REQUIREMENT

Wed, 22 Dec 2010 08:00:00 EST

The community caretaker exception allows for a warrantless search to protect public safety, to assist people in distress and to combat perils that are existing or anticipated. The concept first obtained constitutional approval by the United States Supreme Court in the case of Cady v. Dombrowski. There the Court approved a warrantless search of a motor vehicle to located a missing gun. In 2009 the New Jersey Supreme Court extended the doctrine so as to allow a warrantless search of a home in order to facilitate an investigation relating to a sexual assault.

Last month, the Third U.S. Circuit of Appeals rendered a decision that seems to limit the community caretaking doctrine to only automobile searches. In that case law enforcement agents entered a home of an individual without a warrant because of an estranged mother’s concern of the whereabouts of her five year daughter. The police officer found the father in bed and the child secured.
The father later sued under the Federal Civil Rights Act. The core of the case related to whether the warrantless entry into the father’s home could be sustained under any of the exceptions to the warrant requirement contained in the Fourth Amendment. To justify its conduct, the government pointed to the community caretaker doctrine. The court rejected the doctrine and observed that in the Cady case the Supreme Court’s expressly distinguished automobile searches from the search of a home. Notably, the Court affirmed the dismissal of the plaintiff’s complaint and observed that there was a split in the circuits as to the applicability of the community caretaking doctrine to a warrantless search of a home.

DRUG/COCAINE ATTORNEY IN BERGEN (HACKENSACK), PATERSON (PASSAIC) AND MORRIS (MORRISTOWN) COUNTIES: NEW STATISTICS ON DRUG COURTS

Tue, 21 Dec 2010 08:00:00 EST

In 1996, New Jersey first began its Drug Courts in Camden and Essex counties. The program was financed with federal grant money. Thereafter, the program was placed in Union, Camden and Essex Counties,and by 2000 people were pressing for state-wide access to the Drug Courts. In 2004, all of the counties in the state had a Drug Court in place.

Recently the Administrative Office of the Courts in New Jersey issued a report that concluded that the Drug Courts had saved millions of dollars in incarceration cost, significantly reduced recidivism and virtually transformed the lives of thousands of individuals, previously addicted to drugs. The report also said that the Drug Courts are “a reflection of the changing role of the courts in the area of therapeutic jurisprudence”.

One of the most dramatic components of the report disclosed that although approximately 1300 people had completed the program offered by Drug Courts, only 16% had been rearrested and 8% convicted. This compared to the 45% recidivism rate for drug offenders released from prison of which 43% are convicted again. The report also noted that the cost of maintaining a defendant in a Drug Court was approximately $11,000, whereas the cost of incarceration approached $39,000.

Notably, the report also observed that, as a result of recent amendments to the Criminal Code which gave judges the discretion to waive mandatory minimum terms of parole eligibility, many potential candidates for Drug Court are opting for prison time because the shorter sentences seem to be more palatable, than the strict compliance responsibilities required by the Drug Court.

MARIJUANA/POT ATTORNEY IN BERGEN (HACKENSACK), PATERSON (PASSAIC) AND MORRIS (MORRISTOWN) COUNTIES: MEDICAL MARIJUANA AND THE WORKPLACE

Tue, 21 Dec 2010 08:00:00 EST

New Jersey’s Law Against Discrimination (LAD) prohibits disability discrimination. The recent enactment of New Jersey’s Medical Marijuana Law (MML) has placed many employers in a rather difficult quandary because questions relating to employee’s use of medical marijuana may very well trigger liability under LAD. Although the MML statute indicates that an employer does not have to physically accommodate the use of medical marijuana in the workplace, the concern is whether questions and conduct about its use can cause a claim of disability discrimination.

In the state of Oregon, a court has determined that its anti-discrimination laws does not protect an employee’s medical marijuana use outside the place of employment. In another ruling issued a court in California it was held that disability laws do not mandate an employer to allow medical marijuana use in the workplace.

In a recent article in the New Jersey Law Journal, the author seems to suggest that the outcome of the issues similar to the ones presented to the courts in California and Oregon may be different in New Jersey largely because the author believes that New Jersey’s courts are employee-friendly and the terms of LAD are broader than those in the other two states.

MARIJUANA/POT ATTORNEY IN BERGEN(HACKENSACK), PATERSON (PASSAIC), AND MORRIS (MORRISTOWN) COUNTIES: QUALIFYING PHYSICIAN TO ADMINISTER MEDICAL MARIJUANA/POT IN NEW JERSEY

Fri, 17 Dec 2010 08:00:00 EST

As explained in an earlier blog, the New Jersey Department of Health and Senior Services (DHSS) has prepared a significant collection of regulations associated with the administration of New Jersey's medical marijuana/pot law, which are considered by some as rather restrictive. Most critics complained that New Jersey's medical marijuana/pot law and these newly conceived regulations make New Jersey the most restrictive of all the medical marijuana law in the country.

One of those regulations require physicians who are to administer marijuana/pot under the statute to qualified patients and register them with the state government. This regulation is beyond the four corners of the statute. Indeed, no other state requires either conditions.

It is said the regulations also require the physician to state, "I have provided information to the patient on the lack of scientific consensus for the use of medical marijuana." Moreover, doctors are required to make reasonable efforts to wean patients off the drug every three months. Advocates of the statutes vociferously complained that the statement is at complete odds with the law and scientific evidence.

One of the other issues associated with the law is that the dispensaries are required to produce 100% of the marijuana/pot they distribute. Since dispensaries are severely limited by the regulations, most facilities will be required to cultivate in excess of 100 plants. This creates a significant problem because the federal government’s statute states that crop cultivation in excess of 100 plants require a mandatory five-year prison sentence. The problem is confounded, because the new regulations require a physician to be on an advisory board of the dispensaries and not many physicians may be willing to expose themselves to five-year prison term. Another component of the regulations limit the THC potency to no more than 10%. Marijuana sold on the street has a potency factor that is high as 18% higher and even in some exotic strains. New Jersey is the only state that seeks to control the potency of the marijuana pot.

LEGAL MALPRACTICE ATTORNEY IN BERGEN (HACKENSACK), PATERSON (PASSAIC) AND MORRIS (MORRISTOWN) COUNTIES: ATTORNEY FEE SHIFTING AND A PRO SE ATTORNEY LITIGANT

Fri, 17 Dec 2010 08:00:00 EST

The plaintiff in this case was an attorney who worked "of counsel" for a law firm in Bergen County. The lawyer sued the law firm for legal services, he performed while of counsel. The law firm denied the claim and alleged that the lawyer’s invoices were untimely, inaccurate and related to substandard work.

The litigation produced a rather significant controversy with respect to discovery. While discovery motions were pending, the lawyer filed a motion for summary judgment. The law firm responded with a cross-motion for summary judgment. In the meantime, the trial court suppress the defendant’s defenses because of its discovery derelictions. Unfortunately, the order was not sent to either litigant. Resultantly, the summary judgment motions were not heard. Later, the trial court vacated its order suppressing the defense and ordered the parties to trial the next day. The lawyer sought an adjournment complaining that he did not receive discovery. When the trial court refused to grant the adjournment, the lawyer told the court that it would be a waste of time to try the case, since he had not received discovery and refused to go to trial. The trial court dismissed the lawyer’s complaint. The law firm then moved to assess attorney fees against the lawyer for filing a frivolous lawsuit. The trial court granted defendant’s application and awarded it $3,740 in attorney fees and costs.

The lawyer appealed the court's decision to dismiss the action and to award attorney fees to the law firm. On appeal, the court noted that the case was "fraught with confusion." In addressing the attorney fee shifting issue, the court determined that the law firm had failed to provide a “safe harbor” notice to the lawyer, and to that extent, the trial court's decision to impose attorney fee sanction was improper. It also noted that the law firm appeared pro se and, as a result, the shifting opportunity could not available.

MARIJUANA/POT LAWYER IN BERGEN (HACKENSACK), PATERSON (PASSAIC), MORRIS (MORRISTOWN) COUNTIESl K2 AND SPICE

Wed, 15 Dec 2010 08:00:00 EST

Today, there are two popular so-called synthetic marijuana/pot products called K2 and Spice that can be found in many convenience stores and head shops. These substances are sold as incense.

The synthetic component of these products produce a marijuana-like-high when smoked. The product has been subject of recent scrutiny to the extent that at least four states have banded its use (i.e. Arkansas, Kansas, Kentucky, and Alabama). Indeed, last week Alabama’s and Arkansas’s governor signed an emergency order prohibiting the use of the substance.

Last week the DEA elected to use its “Emergency Scheduling Authority” to control the dissemination of the chemicals used to make the “fake pot” products. It is expected that the synthetic cannabinoids used to make K2 and Spice will be soon placed on Schedule I which is the most restricted category of drugs.

CONSUMER FRAUD LAWYER: BERGEN (HACKENSACK), PATERSON (PASSAIC), MORRIS (MORRISTOWN) COUNTIES: PERSONAL LIABILITY AND NEW JERSEY'S CONSUMER FRAUD STATUTE

Wed, 15 Dec 2010 08:00:00 EST

Quite a number of years ago, New Jersey Supreme’s Court decided the case of Gennari v. Weichert Realty. One of the many issues addressed in that opinion was whether personal liability could be imputed to a real estate broker who took part in misrepresentations made to a home buyer? The question was answered in favor of the home buyer.

In a recent case, the plaintiff landowners sued a contractor corporation and its principal when a retaining wall built on the landowner’s property failed. During the trial phase, the court dismissed the claims against the principal. Thereafter, the case proceeded to trial and produced a jury verdict of $490,000 against the contractor corporation. The landowners ultimately appealed the dismissal of the personal liability of the principal of the contractor corporation to the Appellate Division which reversed the trial court’s decision to dismiss the claim against the corporation’s principal. The appellate court concluded that the term “person” as defined by the CFA included employees, agents, officers, directors and stockholders. The case is now before the Supreme Court.

MARIJUANA/POT LAWYER IN BERGEN (HACKENSACK), PATERSON (PASSAIC) AND MORRIS (MORRISTOWN) COUNTIES: NEW JERSEY'S MEDICAL MARIJUANA LAWS AND ITS ADMINISTRATIVE HURDLES

Fri, 10 Dec 2010 08:00:00 EST

Although New Jersey Medical Marijuana laws was enacted many months ago. it appears that administrative decisions are impeding it application.

Recently, the Department of Health and Senior services (DHSS) enacted a proposed form of regulations to control the law. The regulations which are comprised of about 98 pages of text, include restrictions not contemplated by the statute.

Some of those restrictions included a limitation on the THC content of the marijuana/pot as well as the strains of the marijuana/pot to be sold. They are also requiring qualified physician to inform qualified patients of the potential additive effect of marijuana/pot. These new rules and regulations have been seriously criticized by the sponsors of the statute, medical marijuana/pot advocates and people potentially qualified for the medical marijuana/pot. Indeed, recently the New Jersey Assembly enacted a Resolution condemning the DHSS efforts to place impermissible limitations on the medical marijuana/pot statute.

When confronted with the issue, Gov. Christie, who was appearing at a town hall meeting in Hackettstown, said:

"If they get rid of the regulations, I have, then I have to go back and rewrite those regulations… I want this to be finished, I want to implement it and be done with it."

Christie has previously requested a 12 month moratorium on the effective date of the medical marijuana/pot statute. The Legislators only agreed to a 90 day moratorium.

CONSTUCTION LAWYER IN BERGEN (HACKENSACK), PATERSON (PASSAIC) AND MORRIS (MORRISTOWN) COUNTIES: THE NEED TO ESTABLISH DAMAGE IN A CONSTRUCTION CASE WITH AN EXPERT WITNESS

Thu, 09 Dec 2010 08:00:00 EST

Last month, an appellate panel addressed the question of whether an expert witness was needed to establish damages in a construction case.

In that case, a homeowner engaged a home improvement contractor to build an addition on her home. The job was completed in 2003. Sometimes in 2007, the roof began to leak. Thereafter, the contractor returned to the home at least four times in a 15 month periods to repair the roof. On the last occasion, he removed all of the shingles on that part of the roof that he thought was causing the leak and replaced some of the flashing. The roof continued to leak, however. At that point, the homeowner obtained estimates from four other roofers, and then sued the contractor.

During a pretrial mediation session, the estimates were reviewed by the contractor. Notably, they were not offered into evidence at trial. Ultimately, the trial court, sitting without a jury, determined that the contractor had breached its contract, and that damages should be awarded to the homeowner in the amount of $2,000. In rendering his decision, the court noted that plaintiff’s estimates were “ kind of all over the place". Parenthetically, the case did not identify how the trial court made these observations when the estimates were not placed into evidence.

The contractor appealed the decision and argued that the estimates were inadmissible hearsay and that plaintiff could not prove damages because an expert witness did not establish his fault. In reversing the trial court's decision, the Appellate Division concluded that the court below did not provide an adequate explanation as to how the damage figure was computed, placing special emphasis on the trial court's observation that the estimates were “all over the place." Unfortunately, it did not specifically address the contention of the contractor, as to whether estimates could be used as evidence to establish damages.

Although the Appellate Division reversed the trial court's decision because of the damage issue it, continued to analyze the question of whether an expert was needed to establish fault. In that regard, the court said that experts are not required to establish appropriate professional standards, where either the doctrine of common knowledge or res ipsa loquitur apply. As to the former, the court observed that the common knowledge doctrine applies when a lay person can determine whether a standard had been breached without assistance of an expert witness. As to the issue of res ipsa loquitur, the court recognized that the doctrine applied where: (a) events generally “bespeaks" of negligence; (b) the instrument used in the conduct was within the exclusive control of the defendant; and, (c) no evidence existed that the negligence resulted from the plaintiff's conduct. Grounded upon these observations, the court concluded that both doctrines did not require the homeowner to produce expert witnesses in the context of the case.

DRUNK DRIVING/DWI ATTORNEY IN BERGEN (HACKENSACK), PATERSON (PASSAIC) AND MORRIS (MORRISTOWN) COUNTIES: THE DOUBLE JEOPARDY CLAUSE AND DRUNK DRIVING/DWI PROSECUTION

Thu, 09 Dec 2010 08:00:00 EST

The double jeopardy clause prohibits the government from prosecuting a citizen twice or from imposing multiple sentences for the same offense. Recently, an appellate panel analyzed the application of the double jeopardy clause in the context of a drunk driving/DWI prosecution.

In that case, the defendant drove a motor vehicle across a roller hockey rink and two baseball fields and in the process, struck a barrier, a tree and some trash cans; he narrowly missed a group of children playing on the field. His blood-alcohol concentration at the time of his arrest was .237 which is nearly 3 times the limit authorized by New Jersey’s drunk driving/DWI law. Ultimately, the defendant was charged with drunk driving/DWI, reckless driving, failure to wear a seatbelt and operating a motor vehicle in an area of recreation. He was also charged with operating a motor vehicle recklessly and creating widespread risk of injury or damage while intoxicated which is a criminal offense under New Jersey’s Criminal Code.

Later, the defendant pled guilty to the criminal offense and in his factual basis to support his plea arrangement he testified about his level of intoxication. Once the indictable offense was resolved, the Municipal Court require the defendant to answer the motor vehicle accusations. There, defendant’s counsel requested the municipal court judge to dismiss the drunk driving/DWI conviction because of double jeopardy principles. That request was denied. Defendant ultimately pled to the DWI offense, reserving his a right to appeal the double jeopardy ruling. On de novo appeal to the Law Division, Judge Connors of Cape May County granted defendant’s request to dismiss the drunk driving/DWI charge on the basis of double jeopardy, concluding that the “same evidence” test established by the Supreme Court in the case titled State v. DeLucia left him with no other alternatives.

The case was taken to the Appellate Division. There the prosecutor argued that it could have used other evidence to prove the creation of the widespread risk charge and therefore double jeopardy should not apply. The Appellate Division rejected that argument concluding that what could have occurred is not would did occur and, since defendant’s intoxication was an element of the widespread risk charge, double jeopardy obtained. The government also sought to convince the court that the double jeopardy clause should not apply where the conviction is based on a guilty plea, as opposed, to a jury verdict. The Appellate Division dismissed that argument out-of-hand.

DRUNK DRIVING/DWI LAWYER IN BERGEN (HACKENSACK), PATERSON (PASSAIC) AND MORRIS (MORRISTOWN) COUNTIES: THE USE OF THE STALKER LIDAR LASER GUN

Wed, 08 Dec 2010 08:00:00 EST

Within recent times, New Jersey State Police and a few local law enforcement agencies have been using a laser operated device called the Stalker Lidar to detect the speed of motor vehicles. Recently, an Appellate Division opinion overturned the speeding conviction of an individual, because it concluded that the device had not been found scientifically reliable and therefore could not be used as evidence of the defendant’s speed.

In that case, the defendant was stopped in East Brunswick by a local police officer after the device determined that the defendant was traveling 18 miles above the 45 mile-per-hour limit. Prior to trial defendant’s attorney made well integrated discovery requests that related to, among other thing, the operability and reliability of the laser device. Those requests were denied at the local level and the defendant was ultimately convicted of speeding. On de novo appeal to the Law Division, the conviction was reaffirmed, along with the trial court’s ruling on defendant’s discovery requests.

In the case before the Appellate Division, the court not only concluded that the defendant had a legitimate right to most of the discovery requests made before the trial court, but more importantly, it concluded that the device has never had it’s scientific reliability confirmed by any court and therefore, the speed of defendant’s vehicle as determined by the device was in admissible.

MARIJUANA/POT LAWYER IN BERGEN (HACKENSACK), PATERSON (PASSAIC) AND MORRIS (MORRISTOWN) COUNTIES: THE ABANDONED PROPERTY EXCEPTION TO THE WARRANT REQUIREMENT

Wed, 08 Dec 2010 08:00:00 EST

Sometime in the autumn of 2007, a local law enforcement agent in Bradley Beach noticed an individual approach two juveniles in a high crime area that maintained a good level of drug activity. As the police officer drove closer to the group, he saw a hand-to-hand exchange between the individual and one of the two juveniles. When the individual recognized the police officer, he abruptly turned and walked through a fence adjacent to the site where the group had gathered and threw a black bag into a dumpster.

The police officer first detained the juveniles and then called for a backup. While waiting for the backup, the police officer determined from the juveniles that the individual had sold them marijuana/pot. When the backup arrived the police officer immediately searched the dumpster which produced a quantity of marijuana/pot and later arrested the individual.

The individual was ultimately convicted of multiple crimes associated with the transaction observed by the police officer, including a third-degree distribution of marijuana/pot to a juvenile. On appeal, the individual requested the Appellate Division to review the constitutionality of the seizure of the marijuana/pot from the dumpster.

In addressing the issue, the court initially observed that in order to have standing to suppress seized property a defendant has to have a proprietary or possessory interest in the property that was seized. In this case, the court concluded that defendant had no constitutionally protected right to suppress the seized marijuana/pot because it was abandoned when it was placed in the dumpster. In addition, the court said the that the police officer had the authority to stop the individual under Terry v. Ohio because there was articulable suspicion to believe that a crime had been committed and given the other circumstances of the case (i.e. high crime area, flight and the police officer’s observation) the retrieval of the bag of marijuana/pot was legitimate.

A DRUG LAWYER IN BERGEN (HACKENSACK), PATERSON (PASSAIC), MORRIS (MORRISTOWN) COUNTIES: THE SPOUSAL PRIVILEGE

Tue, 07 Dec 2010 08:00:00 EST

The spousal privilege is a rule of evidence that prevents the spouse of an accused from testifying against the accused in a criminal case. There are three limited exceptions to that privilege. They are: (a) if the accused spouse consents (b) if the accused is charged with an offense against the spouse or a child of either of the spouses; or, (c) where the spouse is a complainant. The policy consideration associated with the rule recognizes that the marital contract is an important component of social order and that if a spouse is compelled to testify against another spouse who is accused of a crime the marital arrangement could be significantly impaired. In short, public policy requires the truth to be compromised in order to preserve this valuable relationship.

A recent case has tested the outer limits of the spousal privilege. In that case a woman accused her employer and her older sister’s boyfriend of sexual assault at his medical office. The sister lived with the accused for a number of years. As result of this disclosure, however, the sister moved out of the defendant’s home. In the process she took the defendant’s palm pilot, a towel and a pair of underwear. She took the palm pilot to determine if there were any photographs of her sister and the towel and underwear because they could have contained a residue of semen. Three days after the sister moved out of the defendant’s residence, they resumed their relationship and even scheduled a wedding. The government filed an application with the court seeking to enjoin the marriage. The application was denied.

The defendant was later charged with aggravated sexual assault. The government filed another application compelled the sister, now the wife of the defendant, to testify. The trial court granted the application. The case was reversed on appeal. The Appellant Division noted, that although testimonial privileges are to be narrowly construed, the public policy associated with maintaining the integrity of the marital arrangements was more important than the trial court’s need to develop the truth.

LEGAL MALPRACTICE ATTORNEY: BERGEN (HACKENSACK), PASSAIC (PATERSON), MORRIS (MORRISTOWN)" DISQUALIFICATION OF TRIAL COUNSEL

Fri, 03 Dec 2010 08:00:00 EST

An appellate panel recently decided an issue relating to whether an attorney could be recused from prosecuting claims against a business entity that had previously discussed with the attorney the prospects of representation an anticipated, yet unrelated lawsuit.

In the case subject of the appeal, the attorney was engaged by a contractor to sued a corporation for failing to pay for work performed by the contractor at the corporation’s restaurant. Within a month into litigation, the corporation’s attorney requested the trial court to disqualify the contractor’s attorney because of discussions the corporation’s principal had with the contractor’s attorney about representing her in pending litigation. The corporation’s principal claimed that she disclosed to the contractor’s attorney extensive information about the corporation’s business history and existing legal problems. The trial court was not convinced and refused to disqualify the contractor’s attorney.

The case ultimately found its way to the Appellate Division, where the court concluded that the earlier conversations between the contractor’s attorney and the corporation’s principal did not relate in any way to the existing legal controversy and further that it was fairly distant from the pending litigation.

EXPUNGEMENT LAWYER IN BERGEN (HACKENSACK), PATERSON (PASSAIC) AND MORRIS (MORRISTOWN) COUNTIES: COUNTY PROSECUTOR CHARGED WITH VIOLATING EXPUNGEMENT STATUTE

Thu, 02 Dec 2010 08:00:00 EST

New Jersey’s expungement statute states that a person who discloses an arrest or conviction of another with knowledge that the arrest or conviction has been expunged is guilty of disorderly persons offense.

That statute was applied most recently in a very unusual case in Somerset County. In that case , a defendant had received an expungement order in December 2009. Thereafter and during an unrelated controversy, the county prosecutor sought to resist the defendant’s motion for a return of property seized during a search of his home with a brief that disclosed the prior expungement. The information was disclosed a second time during the oral arguments on the motion.

The defendant’s attorney cautioned the prosecutor several times about filing an opposition brief that disclosed the prior expungement. The advice was ignored. A summons ultimately issued against the prosecutor in October and the cases is now pending in the Somerset municipal court.

EXPUNGEMENT LAWYER IN BERGEN (HACKENSACK), PATERSON (PASSAIC), MORRIS (MORRISTOWN) COUNTIES: FORFEITURE ORDERS IN THE CRIMINAL PROSECUTION OF PUBLIC EMPLOYEE

Mon, 29 Nov 2010 08:00:00 EST

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

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

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

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

LEGAL MALPRACTIC ATTORNEY IN BERGEN (HACKENSACK), PATERSON (PASSAIC) AND MORRIS (MORRISTOWN) COUNTIES: MUNICIPAL COURT JUDGE QUESTIONED ABOUT CONFLICT

Mon, 22 Nov 2010 08:00:00 EST

Recently a municipal court judge in Bergen County was required to explain to the Advisory Committee on Judicial Conduct why he agreed to sit in judgment of a defendant charged with speeding, where the defendant was a former teacher of the judge’s daughter.

It appears that when the case appeared on the court’s calendar, the judge requested the prosecutor to downgrade the speeding offense to an obstruction of traffic offense. As a result, the prosecutor spoke to the officer who issued the summons. The officer would only agree to an unsafe driving offense plea which is a no point violation.

When plea negotiations proved unsuccessful, the judge refused the prosecutor’s request to adjourn the case to obtain certifications for the radar unit subject of the traffic stop. Although the prosecutor was able to get the certification introduced into evidence at trial, the judge found the defendant not guilty.

The judge was charged with violating canons of judicial responsibility that prohibit using his office to advance the private interest of others, initiating conversation about a pending matter, and failing to recuse himself when faced with a conflict of interest. The judge said that the prosecutor never requested him to be recused from the case; nor did the prosecutor suggest a conflict.

MARIJUANA/POT LAWYER IN BERGEN (HACKENSACK), PATERSON (PASSAIC) AND MORRIS (MORRISTOWN) COUNTIES: PRETRIAL INTERVENTION AND DISTRIBUTION OF DRUG CASES

Wed, 17 Nov 2010 08:00:00 EST

Over 30 years ago, New Jersey’s Supreme Court implemented the Pretrial Intervention Program (Program). The Program was conceived to allow certain defendants to avoid the stigma of a criminal prosecution by participating in a term of supervised probation.

Procedurally, a defendant charged with an criminal offense will apply to the director of the Program in the county where the case is located. If the Program’s director accepts the defendant, the prosecutor will then review the application. The prosecutor may accept or reject the application in his/her discretion. Although a defendant has the right to appeal a prosecutor’s rejection, the standard of review is limited to a “plain and gross abuse of discretion” which is a rather difficult standard to overcome. Recently, an appellate division panel analyzed an application filed by defendant who was driving an automobile that contained 2 pounds of marijuana, a digital scale, empty plastic bags, a pipe and a grinder. The defendant was charged with third-degree possession of CDS with intent to distribute.

The defendant’s application was accepted by the Program’s director who observed that the defendant was cannabis dependent and that he was effectively treating the disease. The application was rejected by the prosecutor. The prosecutor’s rejection letter contained numerous reasons including: that there was a co-defendant in the case; that defendant was in possession of a large quantity of marijuana; and, that although the defendant was a first offender his drug addiction should require a conclusion that he violated the law in the past. On appeal, a Law Division judge reversed the prosecutor’s decision and authorized the defendant’s admission into the Program. The government appealed.

In analyzing the case, the appellate panel first observed that in order to reverse the prosecutor’s decision it must find that “the decision was based on inappropriate factor, failed to mention a relevant factor or so inappropriately weighed the relevant factors that the decision amounted to an abuse of discretion.”

Notwithstanding, the structures of this rule, the court affirmed the trial court’s decision. The Appellate Division placed special emphasis on the fact that the defendant was a first offender and that his addiction may have been a material factor in the crime. It also observed that defendant was making a good-faith effort to overcome the addiction. As to the government’s contention that this was a serious offense because of the weight of the marijuana, the court observed that the nature of the offense was not one of the disqualifying crimes set out in the Program’s guideline and while it could be considered, the weight of the marijuana could not control.

DRUG ATTORNEY IN BERGEN (HACKENSACK), PATERSON (PASSAIC) AND MORRIS (MORRISTOWN) COUNTIES: CRACK COCAINE STATUTE AMENDED BY THE FEDS

Mon, 15 Nov 2010 08:00:00 EST

This August, President Obama signed legislation removing the exceptionally hard punishment imposed upon crack cocaine offenders in federal courts.

This decision was grounded upon the legislator’s belated recognition that the physical and psychiatric influence of crack cocaine is virtually indistinguishable from powder cocaine. In addition, it has been established that the harsh penalties imposed on crack cocaine offenders have failed to deter high-level drug dealers. Indeed, it has been shown that the majority of crack offenders are relatively low-level users and street dealers. Finally, statistics show that there is a disproportionate number of blacks in prison for crack related offenses which is consideration that has fueled speculation that the federal drug laws discriminate against minorities.

The new law increases the minimum amount of crack cocaine necessary to impose a five-year mandatory minimum sentence from 5 gm to 28 gm. It also increased the amount of crack cocaine necessary to generate a ten-year mandatory minimum term from 50 gm. to 280 gm. Notwithstanding, this amendment a significant distinction will still exist between penalties imposed for crack cocaine offenses and powder cocaine offenses.

One commentator has said that Congress needs to finish the job by making this new legislation retroactive, so as to permit the release of thousands of men and women who were sentenced long ago to long terms of imprisonment for relatively minor crack cocaine offenses.

CRIMINAL LAWYER IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: SUPREME COURT TO REVIEW USE OF UNSIGNED CONFESSIONS

Thu, 11 Nov 2010 08:00:00 EST

For almost 60 years a principle of law has existed in this state that prevents the government from introducing into evidence an unsigned confession. This time-worn rule is now being tested before the Supreme Court in a murder case.

The defendant in the case was charged with the murder of an 85-year-old woman. When the defendant surrendered to the local police he gave both a transcribed and informal confession. The transcribed confession was in the form of questions and answers. Before the defendant had an opportunity to sign the transcribed confession, a lawyer appeared on his behalf and, as a result, defendant’s signature was never secured.

The detective who took the confession testified at trial to its contents without objection from the defendant’s lawyer. During the testimony, the prosecutor distributed copies of the statement to jury. The trial judge admitted the statement into evidence, again without objection from defendant’s counsel. The admissibility of the statement was first raised by the public defender’s office on appeal. In relying upon the well-settled principle of law recited above, the Appellate Division reversed the conviction.

Recently, the issue was argued before the Supreme Court. A decision is expected the in due course.

LEGAL MALPRACTICE ATTORNEY IN BERGEN (HACKENSACK), PATERSON (PASSAIC) AND MORRIS (MORRISTOWN) COUNTIES: PETTY THEFT BY GOVERNMENT ATTORNEY

Wed, 10 Nov 2010 08:00:00 EST

An attorney employed by the Department of Human Services was recently censured for stealing food and drink from a kiosk in his office’s lobbying that was operated by a blind owner. The lawyer was seen on video stealing food and beverages on at least 14 times in a month and a half. The Supreme Court endorsed the disciplinary review board’s recommendation and labeled the offense" particularly repugnant."

The lawyer denied that he participated in the thefts and contended that the blind vendor was extremely vexatious and did not want to make change at times. Resultantly, when the lawyer had only a $20 bill, he would take a bottle of water and pay for it later.

The lawyer was not charged criminally, but he agreed to retire from public employment, where he has worked since the 1970s and not to work for the government again. He paid the blind vendor $120.00.

LEGAL MALPRACTICE ATTORNEY IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: CAN A CITIZEN APPEAL AN ETHICS COMPLAINT THAT HAS BEEN REJECTED BY A LOCAL ETHICS PANEL?

Tue, 09 Nov 2010 08:00:00 EST

Currently, ethics complaints against lawyers that are rejected by county ethics panels can not be appealed. That rule may change, however, if the Supreme Court embraces an appeal filed by a disgruntled citizen.

The underlying facts associated with this appeal relates to a situation where an attorney engaged by a contractor, sought to collect money against the homeowner for work performed at his property by the contractor. The contractor's lawyer wrote to the homeowner’s lawyer and contended that the homeowner had built an the illegal unit at the property and concealed the work from local inspectors in order to obtain a C.O. When the homeowner refused to pay, the contractor's lawyer sent a letter to the local authorities disclosing his contention that the homeowner had any legal use. That letter precipitated a municipal court complaint and an action in the Superior Court. In the process, the homeowner paid approximately $100,000 in legal and expert fees.

Later, the homeowner filed an ethics complaint against the contractor's lawyer, contending that the lawyer violated a rule of professional responsibility that prohibits an attorney from threatening to file a criminal action to obtain an improper advantage in a civil claim. At first review, the complaint was rejected by the court’s ethic committee’s, secretary. The homeowner then engaged a well received law firm in Atlantic City, to further advance the grievance. The law firm presented to the secretary of the ethics committee a well-integrated writing identifying various ethical opinions and rules that supported the homeowner’s position. Again, the grievance was rejected.

Resultantly, the homeowner filed an action in the Superior Court against the county ethics committee. That action was rejected by the assignment judge who felt that she did not have jurisdiction to adjudicate the issue. The homeowner appealed to the Appellate Division, and then sought direct review by the Supreme Court. The homeowner’s attorney contends that the present procedure is flawed because there is no watchdog component of the process that can prevent "idiosyncratic policies" at the local level for ethics violations.

In the meantime, the contractor has yet to collect on the $25,000 judgment, he obtained against the homeowner.

DRUNK DRIVING ATTORNEY IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: THE NEED TO RECALIBRATE THE ALCOTEST

Mon, 08 Nov 2010 08:00:00 EST

In State v. Chun, the New Jersey Supreme Court validated the use of the Alcotest in drunk driving prosecutions. One component of the Chun opinion required the government to recalibrate the Alcotest every six months. In a case titled State v. Mc Connell, the Appellate Division concluded that a failure to abide by the recalibration instructions in Chun would not justify a suppression an Alcotest reading.

The case related to a DWI prosecution in Warren County, where the defendant was charged with drunk driving on May 15, 2008, which was approximately 2 days before the Chun decision was published. The defendant’s BAC was .18. The Alcotest machine that was used to analyze defendant’s BAC was last calibrated on September 10, 2007, which was eight months before his arrest. The defendant moved to suppress the results of the breathtest, because the government failed to establish recalibration within six months. The municipal court judge denied the motion. Resultantly, defendant entered a plea of guilty and reserved his right to appeal the issue. A Law Division judge ultimately determine that the failure to recalibrate was fatal and suppress the reading. The case found its way to the Appellate Division. The issue on appeal was whether the instructions in Chun should be applied retroactively. The court determines that it should not and reverse the Law Division’s decision and affirmed the ruling by the municipal court judge.

LEGAL MALPRACTICE LAWYER IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: ANOTHER HOUSE - FLIPPING SCHEME

Fri, 05 Nov 2010 08:00:00 EST

Recently, a well-respected lawyer with vast experiences in municipal bond transactions was censured for his role in three deals involving the fraudulent flipping of residential real estate. The property subject of the illicit scheme were sold twice in the same day where the second transaction produced an elevated sale price. On each occasion the first purchaser did not have the funds sufficient to make the purchase, but was allowed to use money from the second buyer's mortgage to complete the transaction. In addition that the lawyer executed a HUD-1 closing statement that inaccurately failed to collect the money required for the closing and represented both the buyer and seller in each of these transactions.

The district ethics committee recommended a censure and a prohibition against the attorney from engaging in real estate transactions or holding trust funds in connection with real estate transactions. It also recommended that he participated in a small business management course. The Disciplinary Review Board, however, only prohibited the lawyer from participating in real estate transactions and found that the other restrictions were unnecessary.

The lawyer, told the DRB that, sometime in 2004\2005, his law firm “suffered financially from the abrupt departure of its managing partner." Resultantly, he saw these real estate transaction as a creative way to add additional money to his law firm's income stream.

DRUG LAWYER IN BERGEN (HACKESNACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN COUNTIES: MUNICIPAL COURT CERTIFICATIONS

Thu, 04 Nov 2010 08:00:00 EST

Many lawyers with the significant experiences in the defense of drug-related cases find that they are spending a good deal of time in municipal courts. While in those courts, these lawyers quickly learned that some of their colleagues are not truly serving their clients best interest because they fail to appreciate some of the more important issues associated with the prosecution of drug cases.

Recently, a study commissioned by New Jersey’s Supreme Court has recommended that municipal law practice should be added to the list of practices where lawyers can obtain special certifications. Currently, lawyers can obtain certifications for criminal work, civil work, workmen's compensation claims and family law. Lawyers certified by the Supreme Court to practice in these areas of law are able to advertise as specialist in the field and to send referral fees to other lawyers.

The study looked to a number of considerations in making the recommendation to certify municipal court practioners. First, it was determined that the certification process would educate the public and improve the quality of municipal court practice. Second, the court also recognize that a significant number of attorneys are now soliciting “unwary litigants" in municipal court and that consumers need some protection from lawyers who do not have necessary skills or qualifications to protect the client.

An attorney seeking certification in municipal court will have to show that he/she has participated in at least 10 trials, six of which have to be in defense of drunk driving cases. The lawyer must also produce references, continue his/her legal education and obtain recertification periodically.

MARIJUANA LAWYER IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: THE SANCTITY OF THE HOME AND THE FOURTH AMENDMENT

Thu, 21 Oct 2010 08:00:00 EST

In a recent Appellant Division case the court was required to balance a citizen’s right to prevent government’s intrusion into the home and the government’s right to continue an investigation. In that case, police officers were summoned to an apartment owned by defendant after they received an anonymous call about an argument and probable drug sales. The Defendant opened the door as a result of the police officer’s knock. When the defendant recognized the police officers, he tried to slam the door shut but, before that attempt the investigating officer tried to enter the apartment. As a result, the door hit the police officer. The police officer then charged the Defendant with assault and searched the apartment where they found two bags of crack cocaine.

On appeal the court noted that although the initial entry into the home was illegal, defendant did not have a right to slam the door on the police officer. To support its ruling, the court cited a Supreme Court case which concluded that a defendant could be convicted of obstruction of justice from fleeing a stop made by a police officer, even though that stop was unconstitutional.

Unfortunately, the appellant panel overlooked a number of other Appellant Division cases that seem to move in an opposite direction. One of those cases related to a situation where a defendant slammed a car door, almost hitting a police officer during a search. There the Court reversed the conviction for disorderly conduct noting that the conduct was protected by the constitution. In another case, the Court concluded that the defendant’s attempt to prevent a police officer from entering his home did not convert suspicion into probable cause to conduct a search.

DRUG LAWYER IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS COUNTIES: PROSECUTORIAL ANIMUS PRODUCES A REVERAL

Wed, 20 Oct 2010 08:00:00 EST

Recently, an appellant panel reversed a criminal conviction because of a prosecutor’s intemperate comments about a defendant and his attorney.

The defendant was charged with the attempted murder of a police officer. Apparently, the police officer and his partner chanced upon a gun fight between rival gangs. Three of the gang members sought to escape in a Jaguar. The police pursued, traveling at speeds in excess of 90 m.p.h. When the stop occurred, the police officers approached the vehicle with weapons drawn. One of the occupants in the car fired a shot atone of the police officers. Two of the occupants fled. The defendant was captured and brought to trial.

During the trial, the prosecutor suggested that defendant’s attorney was incapable of trying the case and continued his verbal assault throughout the trial. During summation, the prosecutor interrupted the defense lawyer’s comments on various occasions and repeatedly urged the trial judge to sanction the defense attorney. In the prosecutor’s summation, he continued to disparage the defense counsel and characterized the defendant and his witnesses as liars.

In reversing the decision, the Appellant Division identified these intemperate attacks as improper. The Court also observed that the prosecutor came close to vouching for the credibility of the police officers which is improper and also cited defects in the trial judge’s charge to the jury on the in-court identification process.

LEGAL MALPRACTICE LAWYER IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: ARBITRATION CLAUSES IN LEGAL MALPRACTICE CLAIMS

Fri, 01 Oct 2010 08:00:00 EST

Lawyers recognize that the potential for a significant verdict in a legal malpractice case is a real and present danger because most jurors have a dim view of lawyers. Resultantly, many lawyers include a provision in their engagement letters that requires all disputes evolving out of the attorney/client relationship to be decided by arbitration. Some of these lawyers are creating a second tier of protection by including language in these clauses that requires the arbitrator and not the court to have exclusive authority to resolve controversies relating to the interpretation, applicability or enforcement of the arbitration clause.

In a case titled Rent-A-Center West, Inc. v. Jackson, an arbitration clause which provided the arbitrator with the sole authority to adjudicate all issues associated with the clause, found its way to the United States Supreme Court. In that case Jackson filed a discrimination suit against his former employer Rent-A-Center. The employer filed a motion to dismiss the complaint to remove the controversy to arbitration. Jackson resisted the application by contending that the clause was unconscionable. At the trial level the Court sustained the employer’s decision and dismissed the complaint. The case was appealed. There the court determined that, although the language of the arbitration clause clearly assigned all decision-making to the arbitrator, questions of unconsciousability, however, resided in the solely within the court’s jurisdiction.

On appeal to the Supreme Court it was held that the issue of unconsciousability had to be decided by the arbitrator and not the court, given the express terms of the arbitration clause. The Supreme Court also noted that the arbitration agreement was really two separate contractual terms. One required arbitration as to all disputes relating to the employer-employee relationship and the second related to questions of enforceability, including issues whether the agreement was unconscionable.

DRUG LAWYER IN BERGEN (HACKENSACK), PASSAIC (PATERSON), AND MORRIS (MORRISTOWN) COUNTIES: THE OCST OF PRISON AND ITS INFLUENCE ON REFORM

Fri, 24 Sep 2010 08:00:00 EST

For many years various interests have argued that the government’s “War on Drugs” has escalated the terms of imprisonment unnecessarily. Unfortunately, efforts to reform these harsh penalties have been largely unsuccessful. As a result of recent developments in Missouri, it appears that the country’s dismal economy and its impact on the stability of government may very well motivate sentencing reform.

Last week, sentencing judges in Missouri were provided with statistics identifying the cost of imprisonment to assist them with their sentencing prerogatives. For example, a three year prison term relating to a drug conviction could cost approximately $37,000, while probation for that same offense can cost $6,770.00. This policy which was implemented by the state’s sentencing advisory commission has ignited a sharp debate. Defense attorneys and financial conservatives consider this alternative to be long overdue. Others, especially prosecutors, considerate it as a transparent effort to pressure judges to send fewer people to prison. One presiding judge said “ it is almost foolish not to look at it. We live in a what’s-its going-to-cost society now.” A law professor from New York University said the policy makes sense because economic factors play roles in all sorts of legal decisions. Another law professor from the University of Utah said that “no one can put a price tag on being a victim” and to that extent, the policy offends principles of reason.

Missouri’s position is simply another spin on other state’s efforts to contain the cost of maintaining a prison system. Michigan has closed its prisons. Arizona has considered placing the supervision of its prison system in the hands of independent contractors and California is seriously probing ways to reduce its prison population.

The cost of over-incarcerating non-violent offenders, especially drug and alcohol offenders, is a problem that needs immediate attention. That attention may be focused on having sentencing judges spend more time analyzing the unique personal characteristics of the defendant, as well as the cost to society, including the economic cost, to determine if other punitive alternatives are available.

MARIJUANA/POT ATTORNEY IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: MARIJUANA/POT FARMS ON GOVERNMENT PARK LANDS

Thu, 23 Sep 2010 08:00:00 EST

For over ten years, drug dealers have cultivated marijuana crops in national and state parks and forests. It has been projected that one-third of California’s national parks have been infiltrated by marijuana “grows.” On average, these grows cover thirty acre tracts, where over 100 plants are cultivated. These marijuana gardens are irrigated by makeshift irrigation systems and protected by illegal pesticides.

In 2008, 3.1 million marijuana/pot plants were seized in national forests with an estimated street value of $12.4 billion dollars. The cultivators, who nurture these grows on public land, avoid the risk of having their property forfeited by the government. In addition, public land produced marijuana/pot is more profitable than smuggling it across the border from the south.

These growers clear and denude vast sections of forest and park land. When the crop is harvested they leave behind mountains of trash and streams laden with human waste and illicit pesticides. Last year, a community in California traced human waste in its water system to a grow in San Bernardino National Forest.

Many of the grows produce violent confrontations between government agents, competitors and naive campers or hikers. In August 2005, a team of game wardens went on a hunt for a marijuana/pot grow. As they approached the field, an officer was shot by a high power rifle. Immediately thereafter, a second grower appeared from the fields with a sawed-off shot gun. He was shot and killed by a game warden. The growers left behind 22,000 marijuana/pot plants with an estimated value of $88 million dollars. The site was in Silicon Valley. Today, law enforcement agents approach a raid on a grow like a combat fire fight; using air support and bringing medics in case of injury.

Eighty percent of the growers arrested by law enforcement agents are Mexican citizens. As a result it is believed that the drug czars of Mexico control the grows. Unfortunately these growers do not know who they work for, which leaves law enforcement officers to conclude that the operations are conducted like a terrorist cell with no link to the leader.

CONSUMER FRAUD LAWYERS IN BERGEN (HACKENSACK), PASSAIC (PATERSON), AND MORRIS (MORRISTOWN) COUNTIES: APPEALS COURT REVERSE A $99,000 ATTORNEY FEE AWARD IN A $650 RECOVERY UNDER THE CONSUMER FRAUD ACT

Thu, 23 Sep 2010 08:00:00 EST

New Jersey’s Consumers Fraud Act (CFA) allows successful claimants to recover reasonable attorney fees irrespective of whether actual damages have been recovered. Recently, an appellant court in New Jersey reversed a trial court’s decision to award $99,000.00 in legal fees to a plaintiff who only recovered $660 in damages. The class action lawsuit was filed against Route 22 Nissan, Inc. and alleged that this car dealership inflated fees contained in its contracts of sale. The lead plaintiff purchased a vehicle in 2001, where the sales contract required a fee of $150.00 for vehicle registration when the charge was actually $51.50. The dealer pocketed the difference.

The plaintiff’s lawyer was a class action expert from Washington, D.C. The defendant’s principal argument was that this law firm had previously prosecuted a similar action in a neighboring county and returned an attorney fee award of almost $120,000.00. Resultantly, it was argued that the fees requested in the second case was duplicative. In his response the trial judge noted that the attorney fee application was for $700,000.00 and as a result of the plaintiff’s lack of success and the credit given for the work done in the first case, the fee of $99,000.00 was appropriate. In addition, the trial court relied on his own personal experiences as a trial lawyer in fixing the fee under the CFA.

On appeal, the Court observed that the judge’s prior personal professional experiences should not have influenced the Court’s decision to determine a reasonable hourly rate and again laid out the principals associated with the so-called lode star concept which is a process required in all attorney-fee-shifting applications under the CFA.

MARIJUANA/POT ATTORNEY IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: A JUDGE'S RESPONSIBILITY TO BE IMPARTIAL

Wed, 22 Sep 2010 08:00:00 EST

It would seem rather academic that a trial judge should be required to maintain a significant level of neutrality and impartiality. A judge in Ocean County has had serious problems with that academic concept. In the last two years he has been reversed by the Supreme Court and the Appellant Division in two rather significant criminal prosecutions.

The first related to a murder trial involving a defendant with serious psychiatric troubles and a drug addiction who killed both his mother and step-father . During that trial the trial judge actively participate in the cross-examination of the defendant as well as the defendant’s expert witness and in the process developed what appeared to be rather significant inconsistencies in their testimony. Indeed, while examining these witnesses, the judge suggested to the jury that he did not believe their testimony. In reversing the defendant’s conviction because of the trial judge’s improper conduct the Court observed that a defendant is “ entitled to face a single adversary, the State and not a trial judge.”

Recently an Appellant Division panel reversed a case involving a trial based on the sexual assault of a child where the defendant was sentenced to forty years in prison with a thirty-four year parole disqualifier. In that case, this trial judge again engaged in a hard cross-examination of the defendant and presented incredulous looks during some of the defendant’s testimony. In addition, he seemed somewhat accommodating to the child victim and her testimony. At times, he sought to rehabilitate her testimony in material areas. That case was revised as well.

Last year a judicial survey conducted by the New Jersey Law Journal where lawyers in Ocean County ranked their trial judges found this trial judge at the very low end of the twenty two judges in that county and gave him a score of 6.36 where the average score was 8.17. He was also ranked worst in his courtesies to lawyers and litigants and his biased to gender and race.

MARIJUANA/POT ATTORNEY IN BERGEN (HACKENSACK), PASSAIC (PATERSON), AND MORRIS (MORRISTOWN) COUNTIESl A NEW PLAN TO ERADICATE DRUG PRODUCTION IN MEXICO

Wed, 22 Sep 2010 08:00:00 EST

For years the United States and the Columbian government have been collaborating in what is called Planned Columbia which is a program conceived to eradicate drug production in Columbia. This program which has produced 60 billion dollars in investments from the United States has done nothing to curtail the production of cocaine in Columbia. Indeed, production in that county has increased.

In 2007, the United States and Mexico embarked upon a similar effort known as the Meridian Initiative or Planned Mexico, which is a negative reference to the Planned Columbia because it is expected to fail just as Planned Columbia failed. In addition, some believe that the dual government program will produce significant deprivation of human rights by the Mexican authority.

Although the program will direct some money to reform the corrupt justice system in Mexico, the bulk of the money will be used for military training and hardware, including sophisticated surveillance equipment. The program is further complicated by reason of the fact that all of the money must be spent by the United State’s government and in generally that requires independent contractors engaged by the government. The United State’s government’s prior experiences with independent contractors have not been good.

MARIJUANA LAWYER IN BERGEN, PASSAIC AND MORRIS COUNTIES: MEXICAN DRUG SONGS

Wed, 15 Sep 2010 08:00:00 EST

Sometime in the 1960's a social phenomenon began to develop in drug-torn Mexico called the baladas prohibidas, which are ballads or corridos written about people involved in the country’s drug industry. It is said that these songs which are sometimes known as narco corridos are sponsored by the country’s drug lords who engage singers to write songs about them to put them in a good light. The music was disseminated in low-social-economic neighborhoods to encourage the country’s poor to work in the illicit industry. One of the other themes of many of these narco corridos is that the USA’s “War on Drugs” is indefensible).

Today these lively tunes are still popular throughout Mexico. Three years ago, however, the owners of various radio stations and their affiliates stopped playing the music because they realized that they were losing their biggest customers who were offended by the music. Last year the government of Baha, California implemented a policy that prohibited the playing of the music. Some social commentators contend that big business’ and big government’s efforts to curtail the narcos corridos will only make the music more popular the more popular they become.

CONSUMER FRAUD LAWYER IN BERGEN, PASSAIC AND MORRIS COUNTIES: THE FIFTH AMENDMENT AND NEW JERSEY'S CONSUMER FRAUD ACT

Tue, 27 Jul 2010 08:00:00 EST

The Fifth Amendment of the United States Constitution states rather clearly that “no person shall be compelled to be a witness against himself.” Although New Jersey does not have a similar component in its constitution, the judge-made law in New Jersey provides to its citizens the same privilege against self incrimination. That principle is also codified in New Jersey’s rules of evidence.

Under New Jersey’s Consumer Fraud Act (Act), the state’s Attorney General is provided with the power to issue subpoenas to require the production of evidence, so as to facilitate the enforcement of the Act. These subpoenas can be used during administrative investigations. The provision of the Act that enables the Attorney General to issue investigative subpoenas contains a special provision that says in essence that if a person can lawfully assert the Fifth Amendment privilege against self incrimination that person cannot be prosecuted or subjected to any type of penalty of forfeiture resulting from the information that was produced, as a result of the subpoena. In short, if a person complies with the Attorney General’s instruction under the subpoena, that person would be immunized from further consequences resulting from the disclosure of that information if the person had a lawful claim to the privilege.

In a recent case decided by the Appellate Division, the court reversed the decision of a lower court that provided immunity to a corporation subject of the Attorney General’s consumer fraud investigation, where the corporation was subpoenaed to produce its corporate records. In analyzing the issue, the Appellate Division noted that the Act required the person or entity claiming immunity to identify some law that would justify the use of the privilege against self incrimination and since a corporation may not invoke the privilege, the corporate target could not receive the benefit of that part of the Act that provided immunity.

NEW JERSEY'S CONSTUCTION LIEN LAW: CAN AN ATTORNEY FOR THE LIEN CLAIMANT SIGN THE DOCUMENT

Tue, 27 Jul 2010 08:00:00 EST

Under New Jersey’s Construction Lien Law a construction lien must be signed, acknowledged and verified under oath by an authorized officer of the company interested in filing the lien. In addition, the person who signs the lien document must identify his or her title in that business entity. The case law in New Jersey has previously concluded that an attorney for a partnership or corporation cannot effectively sign a construction lien. The basis of the statutory principle is to protect a business entity, like a corporation, a LLC, or a partnership, as well as, other interested parties in a construction project from being prejudiced by a construction lien that was executed by someone who did not have the authority to file the lien.

In a recent case, an appellate panel analyzed the validity of a construction lien signed by a lien claimant’s attorney where it was initially alleged that the attorney was an officer of the LLC that filed the lien. Resultantly, the land owner against whom the lien was filed pointed its initial discovery efforts at obtaining information relating to the attorney’s status as an officer of the LLC. The lien claimant consistently rebuffed the landlord’s efforts to develop this issue.

At one point during the discovery process, however, the lien claimant suggested that an officer of the LLC unilaterally appointed the attorney as an officer of the claimant to sign the lien document. In addressing this contention, the appellate division concluded that when a business entity appoints an attorney to sign lien documents it must do so consistent with the business entity’s by-laws or other organic documents.

It also rejected the lien claimant’s argument that it had substantially complied with the construction lien law and observed that construction lien law was in derogation of the common law and resultantly it must be strictly construed and applied. It next noted that substantial compliance could only apply where the general purpose of the statute had been satisfied and since the construction lien law specifically sought to protect corporations and other business entities from the liability that may result from an unauthorized construction lien the concept could not apply in the context of this case.

NEW JERSEY'S CONSTRUCTION LIEN LAW: CAN AN ATTORNEY FOR THE LIEN CLAIMANT SIGN THE DOCUMENT

Tue, 27 Jul 2010 08:00:00 EST

MARIJUANA/POT LAWYER IN BERGEN, PASSAIC AND MORRIS COUNTIES: MEDICAL MARIJUANA USE IN NEW JERSEY DELAYED

Fri, 16 Jul 2010 08:00:00 EST

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

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

DRUG LAWYER IN BERGEN, PASSAIC AND MORRIS COUNTIES: SENTENCING IN CRACK COCAINE CASES

Thu, 15 Jul 2010 08:00:00 EST

Today, the Federal sentencing guidelines require a 5 year minimum mandatory term of imprisonment for the mere possession of 5 grams of crack cocaine. There is a 10 year minimum mandatory term of imprison, where the amount is 50 grams. The penalties for possession of crack cocaine is five times more serious than possession of powder cocaine. For decades, jurists and scholars have complained that this imbalance (i.e. the so-called “5 to 1 ratio”) has a deleterious effect on the prosecution of young African American’s who live in low socio-economic neighborhoods where the use and distribution of crack cocaine is more prevalent than in the upscale white neighborhood were powdered cocaine is readily available.

On March 17, 2010, the United States Senate finally approved a bill that would reduce the penalties for crack cocaine sentencing. The bill would require a 5 year minimum mandatory term in situations where the defendant was in possession of 28 grams of crack cocaine, as opposed to 5 grams and a 10 year minimum mandatory term would be applicable only in cases where the defendant was in possession of 280 grams of crack cocaine, as opposed to 50 grams.

The United States Sentencing Commission has reported that “revising this one sentencing rule would do more to reduce the sentencing gap between blacks and whites than any other single policy change and would dramatically improve the fairness of the Federal Sentencing System.”

DRUG ATTORNEY IN BERGEN, PASSAIC AND MORRIS COUNTIES: CRIMINAL IMPLICATIONS OF ILLICIT DRUG USE DURING PREGNANCY

Tue, 13 Jul 2010 08:00:00 EST

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

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

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

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

MARIJUANA/POT LAWYER IN BERGEN, PASSAIC AND MORRIS COUNTIES: FORMER SEATTLE POLICE CHIEF SPEAKS OUT

Fri, 09 Jul 2010 08:00:00 EST

The Police Chief in Seattle from 1994 to 2000 was Norman Stamper. He has written that over a hundred million Americans have tried marijuana and when that many people disobey a law, it is not only bad policy, it can create a disregard for the law and a loathing for the people who enforce it.
He also contends that legalization of marijuana/pot would not create a significant increase in use and, even if it did, the additional revenues generated from taxation would allow the government to provide an effective counseling programs.

With respect to the argument that today’s marijuana/pot is more potent (i.e. the “it ain’t grandpa’s weed” argument), and hence more addictive, Mr. Stomper argues that a responsible consumer will simply reduce the level of consumption. He also notes that although the marijuana/pot available today is more potent then yesterday’s marijuana/pot it is also more available and legalization would not exacerbate the problem.

Finally, he says that legalization of marijuana will not send a “negative message” to our children simply because it is easier for them to buy marijuana/pot today than it is to by a six pack of beer.

MARIJUANA/POT LAWYER IN BERGEN, PASSAIC AND MORRIS COUNTIES: LEGALIZATION OF MARIJUANA/POT AND ADDICTION

Thu, 08 Jul 2010 08:00:00 EST

It is clear from the last few years that the attitudes of Americans on the liberalization of marijuana law have changed dramatically in favor of a more permissive policy. The real question looming about this attitude adjustment is whether marijuana addiction will increase. The information and opinions on the issue are extremely polarized.

For purposes of obtained insight into the question, a number of social scientists look to the Netherlands for help. There, the legalization of marijuana/pot did not, in and of itself, increase the rates of marijuana use. Indeed, marijuana/pot use in the Netherlands is lower than in the United States. When the number of Dutch “Coffee Shops” increased and the age limit was reduced to 16, however, use among young people increased dramatically. When the number of these coffee shops were later reduced and the age limit raised to 18, there was a marked decline in adolescence use. A hard lesson learned in the Netherlands is that young people seem to be more vulnerable to the excessive marijuana use than their older counterparts.

MARIJUANA/POT LAWYER IN BERGEN, PASSAIC AND MORRIS COUNTIES: MEDICAL MARIJUANA GOLDMINE (Part II)

Thu, 01 Jul 2010 08:00:00 EST

In 2000, Colorado authorized the use of marijuana for qualified patients by a constitutional amendment. Today in Colorado, approximately 1000 people a day qualify as appropriate candidates to use medical marijuana. In a recent newspaper article, the author contended that the demographics of these patients seem to be somewhere between 20 to 30 years old. Some of the conditions that have qualified these candidates are insomnia, back problems and menstrual pain.

A doctor in Boulder Colorado seems to have cornered the market on certifying people as qualified patients. At times, he is able to receive 100 patients a day. Last year, he disclosed that he saw 7,000 people who sought to obtain a script to use medical marijuana. These people paid this doctor an average of $150 for his review. His business has become so successful that he expects to start a company that will franchise a similar operation in other medical marijuana states.

MARIJUANA/POT LAWYER IN BERGE, PASSAIC AND MORRIS COUNTIES: THE MEDICAL MARIJUANA GOLDMINE

Wed, 30 Jun 2010 08:00:00 EST

Recently, a Harvard professor published a study that concluded that Americans spend approximately $25 billion dollars a year on marijuana. In Boulder Colorado, the number of marijuana dispensaries is greater than all of the existing liquor stores and Starbuck’s Coffee Houses combined. The potential for profit is so great that hedge funds and other investors are collecting information to assess the opportunity.

Today, in some of the western states that have authorized the sale of marijuana to qualified patients dispensaries can sell a pound of marijuana for as much as $750 under circumstances where the cost of production can range between $750 and $1,000 a pound. Obviously, the margin of profit is astronomical.

The key to success for a dispensary is usually referrals from the medical professionals who qualify a patients under the statute that authorizes marijuana for medical purposes. Unfortunately, the prospect of kickback arrangements under these circumstances are a real and present danger. Resultingly, a number of states have started rather intensive investigations in this area.

MARIJUANA/POT LAWYER IN BERGEN. PASSIAC AND MORRIS COUNTIES: CAN THE PROSECUTOR USE HEARSAY TESTIMONY BEFORE THE GRAND JURY

Mon, 28 Jun 2010 08:00:00 EST

Although a prosecutor enjoys broad discretion in presenting evidence to a grand jury, the exercise of that discretion requires "conscientious judgment, not arbitrary action." . This exercise of discretion must be made in good faith, with the knowledge that her primary function as prosecutor "is not to convict, but to see that justice is done."

The grand jury as it is derived from common law and, in theory at least, as it still exists, is not simply an "accusatory" body. Its intended function is to act as a buffer against unfounded and arbitrary accusations, to stand independently between the accused and the state as a protector against arbitrary and unfounded governmental action.. Its duty is to sift accusations of criminal conduct, to protect individuals against arbitrary, oppressive and unwarranted criminal accusations, and to assess the likelihood of prosecutorial success. Thus, it may be seen that the grand jury must act as a "shield" as well as a "sword".

In order to be able to fulfill its obligation to act independently of the government, the grand jury has a duty to inform itself as to both the facts and, the law relevant to a given case. See,. However, the courts have increasingly recognized a modern paradox to these requirements, in that "it is the prosecutor who draws up the indictment, calls and examines the grand jury witnesses, advises the grand jury as to the law and is in constant attendance during its proceeding.". Thus, it is clear that a grand jury "cannot be expected to call for evidence of which it is kept ignorant".

While a grand jury may receive and consider hearsay testimony during a course of its proceedings, our courts have likewise made clear that a grand jury action is fatally vitiated where the essence of the state's presentation is to call one investigator whose function is limited to "consigning the prosecutor's file to the grand jury and thereupon [leaving] the room."

DRUG ATTORNEY IN BERGEN, PASSAIC AND MORRIS COUNTIES: CAN THE GOVERNMENT RESCIND A NEGOTIATED PLEA BECAUSE OF A MISTAKE?

Fri, 18 Jun 2010 08:00:00 EST

In a case titled, State v. Veney, the Appellate Division was asked to address the question of whether the government could rescind a plea offer where it made a mistake in determining the seriousness of the crime committed by the defendant, as well as his available sentencing exposure. In that case, the defendant was charged with, among other things, possession of cocaine with the intent to distribute and possession of cocaine with intent to distribute within 1000 feet of a school.

Ultimately, a plea agreement produced an arrangement where the defendant agreed to plea to a third degree school zone offense with a recommendation of a three year term of imprisonment, subject to a 22 month parole disqualifier. All of the other charges where dismissed.

Before sentencing, however, the government sought to vacate the agreement. It contended that the lab report produced information that indicated that the defendant had committed a second degree offense and that it had miscalculated the Brimage Guideline’s Worksheet. The trial court denied the application and the government appealed. Notwithstanding, the defendant commenced serving his custodial term.

On appeal, the court first observed that as a result of the defendant’s incarceration, the state’s appeal was barred by principles of double jeopardy and that was so, even though the government contended that the sentence was illegal. On this contention, the court observed that the sentence was not illegal because New Jersey’s Criminal Code allowed defendant to plea to a lesser term and offense under a negotiated plea agreement.

In closing its thoughts, the Appellate Division noted that in the future, if a trial judge learns that the government made an honest mistake in determining a plea offer, the government should be afforded the opportunity to withdraw the offer. That type of request, however, must be made before sentencing.

DRUG LAWYER IN BERGEN, PASSAIC AND MORRIS COUNTIES: A SECOND DEGREE PLEA BARGAIN WITH THIRD DEGREE DENTENCING EXPOSURE

Thu, 10 Jun 2010 08:00:00 EST

There is a significant difference between sentences that can be imposed for a third degree offense and sentence that can be imposed for a second degree offense under the New Jersey’s Criminal Code. (Code). The sentencing range for a third degree offense is 3 to 5 years. The presumptive term is 4 years. More importantly, however, the Code specifically instructs that first-time offenders have a presumption of non-incarceration, which means that on the day of sentencing, the trial court must impose a non-custodian term absent special circumstances.

A second degree offense requires a sentencing range of 5 to 10 years with a presumptive term of 7 years. Defendants who plea to or are convicted of a second degree offense are presumed to receive a custodial term.

On many occasions, the government will negotiate a plea arrangement that will require the defendant charged with a second degree offense to plea to the second degree offense but receive a sentence consistent with a third degree crime. Under those circumstances, the presumption of imprisonment
remains intact. Moreover, the presumption of incarceration will not be satisfied with a probationary term that contains a condition requiring the defendant to spend a period of time in the county jail.

DRUG ATTORNEY IN BERGEN, PASSAIC AND MORRIS COUNTIES: THE PRESUMPTION OF INCARCERATION IN SECOND DEGREE CASES

Wed, 09 Jun 2010 08:00:00 EST

As explained a number of times in the past, a defendant convicted of a second degree offense may be exposed to a sentencing range of 5 to 10 years with a presumptive term of 7 years of imprisonment. Moreover, a custodial term is mandatory for a second degree offender.

There are circumstances, however, where a sentencing court can conclude that the special circumstances of the case will overwhelm the presumption of imprisonment and impose a non-custodial sentence, if there is a potential of a “serious injustice.” The standard is narrowly drawn and in the words of the Supreme Court case must be grounded upon circumstances that are “truly extraordinary and unanticipated” and that is so, even if the mitigating factors substantially outweigh the aggravating factors. Usually, the core of the trial court’s analysis is whether the defendant’s conduct was idiosyncratic.

The case of State v. Jarbath is a prime example of an idiosyncratic defendant who was convicted as a second degree offender and received a non-custodial term of imprisonment. There, the defendant was a 21 year old women with serious mental deficiencies, including a psychosis. She was charged with murder under circumstances where she dropped her 19 day-old son twice on a coffee table. In that case, the court concluded that the defendant should receive a non-custodial term because of her inability to understand the consequences of her conduct and the serious impact incarceration would have on her well being.

In another case titled, State v. Jabbour, the trial court decided to impose a non-custodial term against a defendant who had pled guilty to a second degree sexual assault on a 4 year old girl. Under that decision, the trial court noted that the defendant was “as sad, sorry, weak individual in need of psychiatric attention and that a period of incarceration will carry a high risk that is never overcoming his emotional difficulties.” On appeal, the Supreme Court reversed the trial court’s decision and concluded that the defendant’s emotional problems were not idiosyncratic. It also concluded that “defendants who commit serious crimes should expect to spend some time in prison.

On another occasions, an appellate court concluded that special circumstances associated with the incarceration of a police officer was not idiosyncratic and this special fact was insufficient to overcome the presumption of incarceration.

DRUG LAWYER IN BERGEN, PASSAIC AND MORRIS COUNTIES: SENTENCING AND THE RIGHT TO COUNSEL

Tue, 08 Jun 2010 08:00:00 EST

In a case titled, State v. Briggs, an Appellate Division panel analyzed a plea agreement requiring a 20 year custodial term and a mandatory minimum term under New Jersey’s No Early Release Act. The Agreement also included a specific term that prohibited the defendant’s attorney from arguing on sentencing day that the defendant was entitled to a term of imprisonment that was less than 20 years. The question before the court related to the part of the plea agreement that prohibited the defendant’s attorney from arguing for a sentence that was less than the negotiated plea agreement.

The court began its analysis by noting that the accused is entitled to counsel at all critical stages of a criminal prosecution. It next referred to cases that determined that a prohibition against summation in non-jury trial violated this constitutionally protected principle. The court than concluded that the ability of a defendant’s lawyer to provide aggressive arguments at sentencing was no less important than the opportunity to give aggressive summations in a non-jury case.

In closing, the court noted that the prohibition against arguing for a less serious sentence could have prevented defense counsel from arguing that the defendant was a candidate for a downgrade sentence (i.e. second degree offense to third degree offense), which is an option that exists under a provision of New Jersey’s Criminal Code where the trial court is “clearly convinced that the mitigating factors substantially outweigh the aggravating factors” and where the result was required by the “interests of justice.”

MARIJUANA/POT ATTORNEY IN BERGEN, PASSAIC AND MORRIS COUNTIES: OREGON'S MEDICAL MARIJUANA LAW TAKES A DIFFERENT DIRECTION

Fri, 28 May 2010 08:00:00 EST

Last week, sponsors of a new component to Oregon’s medical marijuana submitted a collection of over 110,000 signatures supporting an initiative that would authorize dispensaries and producers to distribute marijuana to qualified patients. The current law only authorizes qualified patients to grow their own medicine or to designate growers.

The sponsors believe that they have sufficient signatures to motivate the initiative. When the original statute was enacted provisions for dispensaries was not added for fear of the consequences of a federal prosecution. Since then, the Obama administration has indicated that it will not aggressively prosecute medical marijuana grower or users sanctioned under state medical marijuana laws.

This new the initiative will authorized quality control standards that will result in labels that identify the strength and active ingredients of the substance and a certification that will establish that the product is contaminate free. This information will allow doctors to advise patients about appropriate dosages.

It is expected that the new legislation will raise between ten and forty million dollars in the first year from revenues generated from licensing and taxing provisions.

MARIJUANA LAWYER IN BERGEN, PASSAIC AND MORRIS COUNTIES: NEW JERSEY'S MEDICAL MARIJUANA LAW AND ITS INFLUENCE ON PROBATION

Wed, 26 May 2010 08:00:00 EST

With the advent of New Jersey’s Medical Marijuana law, many lawyers are anticipating an issue relating to whether a defendant on probation will violate a term of probation if his/her urine is infected with THC under circumstances where he/she has the authority to purchase and consumer marijuana under the instructions of the new statute.

In one jurisdiction, an appellate court was required to determine whether a defendant violated a condition of probation that required the defendant to “obey all laws” where he used medical marijuana Under those circumstances, the court decided that the defendant was not in violation of any laws because he was in possession of a quantity of marijuana under that state’s medical marijuana law and that was so even though the prosecution argued that, notwithstanding the authority of the defendant to possess the marijuana under the medical marijuana statute of that state, the defendant violated the federal laws that do not authorize the possession of marijuana under any circumstances.

In another jurisdiction, the question was whether or not a trial judge could impose a “no medical cannabis” condition during the defendant’s probation term. In that case, the court determined that a condition of that nature was legitimate.

DRUG ATTORNEY IN BERGEN AND PASSAIC COUNTIES: OTHER CRIMES EVIDENCE

Mon, 24 May 2010 08:00:00 EST

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

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

DRUG ATTORNEY IN BERGEN AND PASSAIC COUNTIES: IDENTIFYING CONFIDENTIAL INFORMERS IN DRUG CASES

Fri, 21 May 2010 08:00:00 EST

The law in New Jersey allows the government to resist disclosing the identity of confidential informers absent exceptional circumstances. One exception to this general rule is where the informant was a direct participant in the criminal act. The purposes of the so-called informer’s privilege is to encourage citizens to provide law enforcement agents with information relating to criminal activity without fear of retaliation.

In a recent drug prosecution, the government initially identified an informant as R.B. and refused disclosure. During the defendant’s investigation of the government’s accusations, he obtained a statement from an individual that exonerated the defendant. The statement was provided to the government during the discovery exchanges in the case. In the defendants’s opening comments to the jury, he disclosed the existence of this witness and the exculpating statement. In the government’s opening statement, however, the prosecutor disclosed to the jury that the anticipated defense witness that provided the favorable statement was in fact the confidential informant and that the confidential informant would testify at trial. Defense counsel was completely surprised especially in light of the government’s prior position not to disclose the identity of the informant.

Analyzing this issue, the court characterized the case as “unusual”. It concluded that the timing of the disclosure of the confidential informant indicated that the government calculated that decision in such a way as to create a fundamental unfairness to the defendant. As a result, a mistrial should have been granted or a substantial continuous authorized.

DRUG ATTORNEY IN BERGEN AND PASSAIC COUNTIES: TRIAL OF A DRUG CASE

Thu, 20 May 2010 08:00:00 EST

The trial of a drug case is usually a rather heated environment where advocates will test the bounds of fair play. On many occasions the government’s lawyer will exceed the parameters of the law during summations. Where it had been determined that a prosecutor has offended principles of due process during closing comments, appellate court will analyze the record with a careful eye to determine if the case should be reversed. Some of the factors the appellate courts will consider is whether objections were timely made, whether the improper comments were promptly withdrawn, and whether the court struck the comments and instructed the jury to disregard the comments.

On many occasions, the testimony of the defendant and/or the defense witnesses are pitted against the testimony of an investigating and/or arresting police officers. Under those circumstances, credibility is a highly sensitive issue for the jury’s determination. As a result, the government’s comments that investigating or arresting police officers are more credible than ordinary citizens should not be received with favor. The following comments given by the government’s lawyers during summation may be considered improper:

•    The police office has no stake in the outcome of the case.
•    The police officer has no motive to lie.
•    The police officer is not interested in scoring points by falsely accusing somebody.
•    A police officer cannot lie because of the “magnitude of charges” that could be made against him.
•    A police office will not jeopardize his 25 year career by perjuring himself.
•    A police officer who testifies falsely will have his career ended “in a minute”.
•    A police officer has nothing to gain by making a false accusation.

MARIJUANA/POT ATTORNEY IN BERGEN, PASSAIC AND MORRIS COUNTIES: INVESTIGATIVE DETENTIONS

Tue, 04 May 2010 08:00:00 EST

Recently, I discuss the influence of a street encounter on a defendant’s constitutional rights and explained that when a suspect’s freedom of movement is curtailed a “seizure” in the constitutional sense may result.

The actual seizure of a person can result during an investigative detention or an arrest. Under an investigative detention, a police officer will generally restrict the person’s movement without placing the person under arrest. These encounters are usually short in duration. In order to subject a person to an investigative detention, the government must establish an articulable suspicion that the suspect has violated the law. Articulable suspicion is a suspicion that can be “particularized.” It is less than the evidence needed to establish probable cause.

An investigative stop can mature into an arrest, under certain circumstances. The facts to be used to determine this issue are: (a) the length of the detention, given the purpose of the original stop; (b) the fear and humiliation the official conduct produces; (c) the movement of the suspect to another location, isolation of the suspect; and (e) the use of handcuffs.

MARIJUANA/POT ATTORNEY IN BERGEN, PASSAIC AND MORRIS COUNTIES: DISTRIBUTION CASES AND THE GOVERNMENT'S NEED TO ESTABLISH THAT THE DEFENDANT KNEW THE WEIGHT OF THE SUBSTANCE

Thu, 29 Apr 2010 08:00:00 EST

Under New Jersey’s Criminal Code, the weigh of the substance in a distribution case will influence the seriousness of the crime and the resulting period of incarceration. At times, a defendant will attempt to defend a distribution case by claiming that he did not know the weigh of the substance and, as a result, could not be subjected to the penalties identified in the more serious level of liability under the statute. So, for example, a defendant may claim that since he believed that he sought to sell only 4 lbs. of marijuana/pot which is a third-degree offense, he can not be convicted of a second degree offense, if the actual weight of the marijuana/pot was over 5 lbs.

The cases have concluded time-and-time again that ignorance as to the amount of the substance is not a defense. While the government has a responsibility to establish the weigh of the substance as an element of the crime, the defendant’s knowledge of the quality and quantity of the drugs is not relevant. Stated differently, while the government must establish the weight of the substance to satisfy the grading provisions under the statute, it does not have to establish that the defendant knew how much he/she possessed.

DRUG LAWYER IN BERGEN, PASSAIC AND MORRIS COUNTIES: THE USE OF A CONDITIONAL DISCHARGE ON TWO SEPARATE DRUG RELATED OFFENSES

Wed, 28 Apr 2010 08:00:00 EST

The so-called Conditional Discharge Statute in New Jersey allows for a person who has never been convicted of a drug-related offense to obtain an order suspending the further prosecution of the offense, so as to allow the defendant an opportunity to successfully complete a probationary term. If the term of probation is completed without event, the complaint will be dismissed.

In order to obtain the benefit of the statute, a defendant must show that is his/her continued presence in the community or a drug related program will not pose a danger to the community and that the conditions of the supervisory program will protect the public and benefit the defendant.

An Appellate Division decision has concluded that the statute can be available for an individual who has two separate arrests in close proximity to one another where the arrests can be subject to a simultaneous disposition. The core of the Court’s opinion related to the statutory language that speaks specifically about prior convictions and since the defendant in the case before the court had no prior convictions, the statute could be used for both arrests.

DRUG LAWYER IN BERGEN, PASSAIC AND MORRIS COUNTIES: STREET ENCOUNTERS

Tue, 27 Apr 2010 08:00:00 EST

Many times, a drug arrest will result from a seemingly innocuous encounter on the street between a law enforcement agent a suspect. On those occasions when an arrest results, the defendant will usually contend that the encounter was in violation of the Fourth Amendment’s prohibition against unreasonable searches and seizures. Those contentions usually fail because historically the cases have concluded that law enforcement agents can encounter a suspect or make a “field inquiry” without violating the Fourth or Fifth Amendments of the Constitution. Stated differently, a police officer can ask a question of any person on the street without violating any constitutional rights and that is so because there is no seizure as that term is received in this area of the law.

A field inquiry can develop into a seizure, however, if the suspect is not free to leave because the police officer restrained the suspects freedom. This is an extremely fact-sensitive question and turns on whether an objectively reasonably person feels that the right to move has been curtailed.

DRUG ATTORNEY IN BERGEN, PASSAIC AND MORRIS COUNTIES: JURY READ BACKS

Thu, 15 Apr 2010 08:00:00 EST

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

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

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

LEGAL MALPRACTICE ATTORNEY IN BERGEN, PASSAIC AND MORRIS COUNTIES: AFFIDAVIT OF MERIT SIGNED BY A FOREIGN ATTORNEY

Mon, 12 Apr 2010 08:00:00 EST

In order to file a lawsuit against a lawyer and certain other professionals in New Jersey, a claimant must produce an Affidavit of Merit from an expert qualified in the area of practice subject of the lawsuit. In the affidavit, the expert must confirm that there is a legitimate claim against the professional. The function of the Affidavit of Merit Statute is to weed out frivolous lawsuits against professionals.

In a recent case filed in the United States District Court of New Jersey, the court concluded that an Affidavit of Merit could be authored by a lawyer that was not licensed to practice in the state of New Jersey, even though the claim subject of the case related to a New Jersey divorce. In that case, the claimant complained that his lawyer failed to provide him with appropriate advice in settling his case, in that, he was deprived of a large share of the marital home and received only limited access to his children.

The affidavit that confirmed the merit of the claim was signed by a lawyer from Pennsylvania.

In rendering its decision, the court observed that a section of the Affidavit of Merit statute says that except in medical cases, “the person executing the Affidavit shall be licensed in this or any other state.”

DRUG ATTORNEY IN BERGEN, PASSAIC AND MORRIS COUNTIES: RANDOM DRUG TESTS FOR STUDENT ATHLETES

Fri, 09 Apr 2010 08:00:00 EST

A Senate Committee recently endorsed a law that would require student athletes participating in championship tournaments to be subject to random drug testing. If passed, New Jersey will be one of three states in the country that authorize such testing.
Athletes that test positive will be banned from organized competition for one year. When they return they will be required to continue to participate in drug testing and undergo special counseling. Sponsors of the Bill contend that it is not conceived to “catch” people, but to deter drug use in school athletic contests.

Texas, which is one of the other three states with a similar testing process, spends approximately three million dollars a year for this program. Last year, Texas tested 45,000 athletes and returned only two positive tests. The other state, Illinois, tested only 695 students. No tests were returned positive. Florida dropped its program as a cost cutting measure last year.

CONSUMER FRAUD ATTORNEY IN BERGEN, PASSAIC AND MORRIS COUNTIES: THE CFA AND THE SPECIAL CIVIL PART OF THE SUPERIOR COURT

Thu, 08 Apr 2010 08:00:00 EST

The Special Civil Part of the Superior Court is limited to cases where the damage claim does not exceed $15,000. While it is a court where a litigant can go to obtain a quick resolution of a legal controversy without the expensive discovery process found in the Law Division of the Superior Court, if the award exceeds the $15,000 jurisdictional limit the excess amount will be forfeited.

In those cases, where a claimant files an action in the Special Civil Part grounded upon a violation of New Jersey’s Consumer Fraud Statute (CFA), the question becomes whether the claimant’s attorney’s fees can be considered in determining the $15,000 cap on damages. On this issue, the courts have concluded that reasonable attorney fees under the CFA are not to be considered damages and as a result cannot be contained by the $15,000 jurisdictional amount in the Special Civil Part.

MARIJUANA/POT ATTORNEY IN BERGEN, PASSAIC AND MORRIS COUNTIES: SCREAMS OF SEXUAL DELIGHT PRODUCE A FIRST DEGREE MARIJUANA/POT CONVICTION

Wed, 07 Apr 2010 08:00:00 EST

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

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

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

DRUG ATTORNEY IN BERGEN, PASSAIC AND MORRIS COUNTIES: THE SIXTH AMENDMENT RIGHT TO REPRESENT ONESELF

Tue, 06 Apr 2010 08:00:00 EST

In February 2010, the Third Circuit Court of Appeals granted a writ of habeas corpus in a case that produced a conviction over twenty-two years ago. The defendant in the case was Anthony Alongi. His co-defendant Paul Kamienski had his conviction reversed by the Third Circuit last year because of insufficient evidence. The case had its roots in a drug transaction that went bad and resulted in the murder of two people.

The issue in the Alongi case related to whether he was entitled to represent himself during the course of his trial. In the beginning stages of prosecution Alongi engaged a well known criminal attorney to represent him. That attorney was conflicted out of the case and another lawyer with good criminal experience was hired. After a while, Alongi got the impression that the second attorney was not “interested” in this case because the lawyer was not getting paid. Resultantly, Alongi requested the trial court to allow him to function as his own attorney. The application was denied. As things developed, the second attorney did a stellar job for Alongi when he obtained an acquittal on the murder charges.

During the habeas corpus litigation the government contended that Alongi’s application to act as a pro se litigant was untimely and that he did not clearly articulate his request to represent himself. The Court rejected both claims and confirmed that the Sixth Amendment Right to Counsel also contained a right to proceed without counsel.

MARIJUANA/POT ATTORNEY IN BERGEN, PASSAIC AND MORRIS COUNTIES: PARENTAL FITNESS AND THE USE OF MARIJUANA/POT

Mon, 05 Apr 2010 08:00:00 EST

Last year an interesting case was decided by an appellate court in Wyoming. The case related to the custody of children who were removed from their parent’s home because of neglect. Later, the mother left the state and abandoned all contact with the children. The father, however, continued his efforts with the state’s child social service agency to rejuvenate his relationship with the children. One of the principal concerns of the government’s agents was the father’s continued use of marijuana. As a result, the agency refused to allow the father access to the children when urine tests confirmed the father’s use of marijuana. Resultantly the father’s contact with the children became sporadic.

Ultimately, the father requested the trial court to provide him with some assistance. The trial court determined that the child service agency could not condition the father’s access to the children with marijuana abstinence. The Court observed that there was no evidence that the father’s use of marijuana hindered his relationship with the children. On appeal, the court affirmed the trial court’s ruling and rejected the social service agency’s contention that continued use of marijuana by the father would affect the health and safety of the children. Specifically, the Court concluded that social service agency had “not provided evidence to connect the father’s marijuana’s use with his unfitness as a parent” and that was especially so, given the fact that the father never used marijuana in the presence of the children.

MARIJUANA/POT ATTORNEY IN BERGEN, PASSAIC AND MORRIS COUNTIES: SEARCH OF VEHICLE ON A CAR CARRIER TRUCK

Thu, 01 Apr 2010 08:00:00 EST

A Federal appeals court in Illinois recently addressed a Fourth Amendment issue relating to a vehicle that was shipped from Arizona to Illinois in a car carrier truck.

It appears that while driving through Missouri the truck driver stopped a state trooper and told him of his suspicion that the vehicle “smelled like spices” and that there were several air fresheners inside. As a result ,the state trooper searched the vehicle and found eight pounds of marijuana and two kilos of cocaine in a secret compartment in the back seat. When the defendant sought to retrieve his vehicle in Illinois, he was arrested and charged with possession with intent to distribute.

The defendant’s Motion to Suppress was denied by the trial court and, as a result, he appealed that decision to the Seventh Circuit. There the Court concluded that the Fourth Amendment could not apply in the case because there was no reasonable expectation of privacy. In reaching that result, the Court observed that the doors of the vehicle were unlocked; that the truck driver was given a set of keys; and, that the defendant knew that the driver could enter the vehicle and drove it off the truck. The Court also concluded that even if Fourth Amendment did apply, the truck driver had the authority to consent to the search.

MARIJUAN/POT ATTORNEY IN BERGEN, PASSAIC AND MORRIS COUNTIES: SEIZED MARIJUANA/POT

Tue, 30 Mar 2010 08:00:00 EST

In a recent case, evolving out of Oregon’s Medical Marijuana Law, a defendant’s property was inspected and a quantity of marijuana/pot plants growing on the property was seized. The grower, who was licensed under Oregon’s Medical Marijuana Law was arrested and his property searched because his crop exceeded the quantity authorized by the statute.

While the case was pending, the property owner filed a motion to have the seized marijuana distributed to the landowner’s card holding customers. The trial court granted the application and had the marijuana distributed to the licensed patients.

The case was taken on appeal. There the court determined that the issue was moot because the marijuana had already been distributed to the licensed card holders and there was no reasonable waY to retrieve it.

CONSUMER FRAUD ATTORNEY IN BERGEN AND PASSAIC COUNTIES: LAWYER'S ILLICIT CONDUCT FOUND TO OFFEND CONSUMER FRAUD ACT (CFA)

Mon, 22 Mar 2010 08:00:00 EST

A bankruptcy judge in New Jersey concluded that a lawyer could be held responsible under New Jersey Consumer Fraud Act (CFA), where the lawyer aided a client in concocting a sale/lease back scam against landowners who had defaulted on their mortgages.

The deal subject of the court’s ruling related to a sale/lease back arrangement between the attorney’s client and the landowners, where the client agreed to payoff the landowners’ existing mortgages and to fund a condition of a Chapter 13 arrangement. In order to finance the transaction with the landowner, the client obtained a mortgage on the property which had been deeded to the client. The client failed to payoff the two mortgages and to pay money required, the Chapter 13 arrangement. In order to aid the plan, the lawyer prepared false closing documents. One of the defenses raised by the client and the attorney was that the CFA could not apply to the case because the landowners where sophisticated consumers. The court rejected the concept out-of-hand.

The Bankruptcy court referred the matter to the United State Attorney’s Office for criminal investigation and to the Office of Attorney Ethics.

DRUG ATTORNEY IN BERGEN, PASSAIC & MORRIS COUNTIES: CONTINUED INTERROGATION AFTER REQUEST FOR AN ATTORNEY CAN INVALIDATE A CONFESSION

Thu, 18 Mar 2010 08:00:00 EST

In Edwards v. Arizona, the United States Supreme Court concluded that once a suspect requests a lawyer, all questioning must cease until a lawyer in made available. The core purpose of the Edwards decision was to insure that a confession is not the produce of unnecessary coercion. In subsequent cases, the Edwards rule has been applied where there was a literal break in the interrogation. Thus, for example, if a suspect evokes his right to a lawyer during an interrogation, and is released, a confession given days later during a second interrogation without a lawyer present, will be suppressed.

Recently, the United States Supreme Court visited the so-called “break in custody” rule in a case titled Maryland v. Shatzer. There, the defendant requested an attorney in an initial interrogation. Two-and-a-half years later, he was interrogated again,. After he was given his Miranda rights and a polygraph test, he made a critical admission. Although the high court in Maryland reversed the defendant’s conviction because it offended the rule in Edwards, that decision was reversed by the Court. There was a suggestion in the opinion that a break of fourteen days between the first interrogation and the second interrogation would be enough to “ shake off any residual coercive effects of his prior custody.”

MARIJUANA/POT LAWYER IN BERGEN, PASSAIC AND MORRIS COUNTIES: DRUG COURT REJECTION HEARINGS

Fri, 12 Mar 2010 08:00:00 EST

Last week, the New Jersey Supreme Court heard oral arguments in two cases where defendants were rejected from a drug court program and sought a plenary hearing to analyze the basis for the government's rejection.

In both cases, the defendants were charged with third degree drug crimes that could require a prison term. In one case, the defendant was rejected from the program because he told authorities that he had "kicked" his drug habit. In the other case, the defendant was rejected because of a long record of burglaries.

When the cases found there way to the Appellate Division, that court remanded the cases with instructions to the trial court to conduct a plenary hearing.

The first defendant's arguments before the Supreme Court was that the trial court should have further explored the defendant's comment that he had control over a $200-a-day habit. The other defendant asserted that it is not uncommon for addicts to commit burglaries to support their drug addiction and, further that he did not have any history of violence.

The questions asked by the justices at oral argument seem to focus on whether the contentious atmosphere of a plenary hearing would upset the informal and cooperative nature of the drug court .

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

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

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

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

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 conviction 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

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 paraphernalia, distribution of small quantities 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 parole 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)

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

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

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

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

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

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

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

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

Thu, 11 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 LAWYER IN BERGEN AND PASSAIC COUNTIES: INCREASE IN MARIJUANA/POT USE

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

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

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

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!

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

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

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

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

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 alleged that the judge berated her for her lack of supervision.

The ACJC alleged 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: CAN A THIRD PARTY PAY THE ATTORNEY FEES OF ANOTHER?

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?

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).

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

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

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 significant 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 possession convictions to continue to receive financial assistance from the federal government.

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

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

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 quantities 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?

Tue, 15 Dec 2009 08:00:00 EST

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

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

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

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

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 prohibiting 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

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

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?

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

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.

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

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!

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 adamant 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 legalize marijuana/pot on a local level overlooks the fact that possession of the substance in any quantity 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

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

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

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

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

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

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.