New Jersey Criminal Defense Journal : New Jersey Criminal Defense Lawyer & Attorney : Travis Tormey of Alexander M. Iler Law Firm : Monmouth County NJ DWI & Drunk Driving Defense

The Appellate Division came down with an important decision last week regarding a drunk driving case in North Brunswick, New Jersey. The Court vacated a DWI conviction which came three and a half years after the defendant was charged with drunk driving. The Court found this to be a violation of the defendant's Sixth Amendment right to a speedy trial. In the opinion, State v. Iskander, the Court found the lenghty delay to be largely the fault of the Municipal Court judge and the prosecutor. The case was stayed while the arresting officer served 13 months on military deployment but the rest of the delays were based on the State's failure to provide discovery and the Court's faulty scheduling practices. The defendant entered a conditional plea of guilty pending his appeal based on a denial of his right to a speedy trial. This appeal was heard in Middlesex County Superior Court and denied. As a result, the defendant's counsel appealed this denial to the Appellate Division and was ultimately successful.

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Under New Jersey law, after fifteen (15) years, individuals who have been convicted of certains sex crimes can move to terminate the obligation to register and/or be released from parole supervision. Megan's Law became effective on 10/31/94 so many individuals are now eligible to be removed from Megan's Law registration requirements if certain criteria are met.

A Motion to be removed from Megan's Law must be filed with the Assignment Judge in the County in which you were convicted of a sex crime. A copy of this motion must be sent to the County Prosecutor's Office in the County in which you were convicted or plead guilty. The Motion must include the date of conviction. Also, you should consult an experienced criminal defense attorney to determine whether or not you are eligible for removal. For example, certain crimes like first degree aggravated sexual assault or a sexual assault on a minor prevent you from filing this Motion for Removal. In the motion, you must show the Court that you are no longer a threat to the community and you have not committed any other offenses. Remember, fifteen (15) years must have elapsed since the date of conviction for you to be eligible for removal. Finally, many Judges are requiring a psychological evaluation and report as part of the Motion for Removal.

If you are interested in filing a Motion for Removal from Megan's Law, please contact myself or Alexander Iler at (732)842-7787.

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Here are some potential resolutions/outcomes to Juvenile cases which are held in Superior Court, Family Division in New Jersey.

Juvenile Conference Committee: A Juvenile Conference Committee is comprised of a group of citizens who have been trained to conduct these hearings and volunteer to participate in the panel. These members of the Committee have been appointed by the Presiding Judge of the Family Division in the County in which the juvenile is charged. The parent or guardian, the juvenile, and the complainant or victim are allowed to participate and discuss the alleged charges with the Committee as well as any surrounding factors. The Committe does not determinen the guilt or innocence of the juvenile. This is an informal discussion among the parties in an attempt to achieve a resolution of the matter. The Committee considers the facts and charges and makes a recommendation in order to rehabilitate the minor. This resolution which will be proposed by the committee can include curfew, counseling, community service, evaluation, restitution, etc. If all parties agree on the proposed resolution, an agreement is signed which lays out the conditions and a time frame for them to be completed.

Intake Services Conference: The Intake Services Conference is conducted by a Probation Officer in a Superior Family Court in New Jersey. This conference is very similar to the Juvenile Conference Committee. The Probation Officer will make a recommendation to the parties which may include any of the conditions listed above under the Juvenile Conference Committee.

Formal or Counsel Mandatory Court: A Formal hearing can only be conducted by a Judge in Superior Court, Family Division. In these hearings, the juvenile must be represented by an attorney. The juvenile must plead guilty or not guilty to the charges. If the minor pleads not guilty, a trial will be scheduled. The Judge decides the guilt or innocence of the minor at trial.

Informal/Juvenile Referee or Counsel Non-Mandatory Court: A Juvenile Referee has been approved by the Supreme Court. This individual may be a Judge or a Hearing Officer who oversees this informal proceeding. He or she will review the case and make a recommendation to the Family Court Judge regarding a potential resolution to the matter. If the juvenile's representative or parent disagrees with the recommendation of the Referee, the case will be heard by a Judge at a Formal Court Hearing. At that hearing, the Judge will decide the case and, if he or she finds the juvenile guilty, the Judge will impose a disposition.

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Here are some Frequently Asked Questions (FAQ) our criminal defense firm receives pertaining to New Jersey Juvenile cases:

What is Station House Adjustment?

Station House Adjustment allows law enforcement officers to resolve minor issues without the necessity of filing a formal Complaint with the court. A police officer can ask the parent or guardian of the juvenile along with the victim, if willing, to come to the police station and discuss a possible resolution to the case. The juvenile and the parent or guardian are asked to assure the police officer that the juvenile will "stay out of trouble" and not commit any future offenses. The police officer can refer the child to a variety of services and programs and may also require the juvenile to make restitution in some form if property has been stolen or damaged. Also, community service or written essays may be required.
 

Who is eligible for Station House Adjustment?

Any juvenile who has been arrested and charged with a Petty Disorderly Persons Offense (known as a "PDP") or an ordinance violation may be eligible. Also, in some cases where the juvenile has no prior record, they may be eligible even if charged with a 4th degree offense. Juveniles with more serious charges, or that are on probation, or that have charges already pending are not eligible.
 

Does the Juvenile need a lawyer?

A parent or guardian is always permitted to hire an attorney to represent a minor at any court appearance. Further, in certain Formal and Counsel Mandatory Court proceedings, the minor must have an attorney. Some other complaints do not require an attorney to be present. However, if there is a threat of incarceration, the Court will require that the minor be represented by counsel.
 

What are Detention Alternatives?

Detentional Alternatives are other options besides incarceration which are available to the Judge when deciding whether to detain the minor in the Youth Detention Center. A Detention Alternative program allows the minor to be supervised in the community while charges are pending. The primary goal of the detention alternative program is to ensure that the minor appears in court when required and does not commit any further offenses if released from custody. If the minor is accepted into the program, he or she will be supervised by the Detention Alternative Coordinator and will be required to follow specific guidelines (similar to probation for adult offenders). Non-compliance with these guidelines will result in the minor being placed in a Youth Detention Center.

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I am often consulted at my Red Bank, New Jersey office by parents regarding offenses committed by their young children. Here is a brief overview of the Juvenile Justice System in New Jersey. The Juvenile Court system in New Jersey is very different from the adult court system. The defendant, a juvenile under the age of 18, has had a formal complaint signed against him/her and is being charged with "delinquency". Delinquency is an act that would be a crime, an offense, or a violation if the act had been committed by an adult. The Complaint describes the facts that the defendant allegedly committed and the violation of the law that the defendant is being charged with. The parent or guardian will receive a copy of the Complaint. Most juvenile complaints are signed by the police either based on personal knowledge or information supplied by others (witnesses). Complaints can also be signed by school officials or the victim of a crime.

If the defendant (the juvenile) is required to have an attorney, the parent or guardian is required to retain one. If you cannot afford an attorney, you can fill out what is known as a "5A" application to determine if you are eligible for a pubic defender. However, if you do not financially qualify for a Public Defender, you must hire an attorney.

I am often asked whether or not the juvenile can and will be detained. A child can be detained upon the signing of the Complaint under certain circumstances. In determining whether detention is appropriate, the following factors must be considered: the health, the safety, and the welfare of the juvenile; the age of the juvenile; the juvenile's ties to the community; the juvenile's prior record; the nature and circumstances of the alleged offense; and the juvenile's record of appearance or nonappearance at prior court proceedings. If the juvenile is detained, an initial detention hearing must be held no later than the morning following the juvenile's placement in a juvenile detention facility. At this jearing, the Judge decides whether or not the juvenile should be released. The parent or guardian is expected to appear at all hearings involving the minor.

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A new bill has passed through the Assembly and Senate which would allow some severely ill patients in New Jersey to be treated with medicinal marijuana. Governor Corzine has said that he will sign the bill into law. This bill is that much closer to becoming law after the Assembly voted 48-14 in favor of the bill (this means that 14 New Jersey lawmakers skipped the vote). The Senate voted in favor of the bill 25-13. According to lawmakers, this will be the "strictest medical marijuana law in the nation" as the bill was carefully drafted to include many hurdles and safeguards to make the medicinal marijuana hard to obtain. Also, according to the Asbury Press Article, the criminal laws will still apply to those individuals who are legally prescribed marijuana and get behind the wheel of a car. These individuals would still face driving while intoxicated (DWI) charges based on their choice to drive while under the influence of marijuana. It will be interesting to see if this bill actually becomes law and the ramifications for criminal law in New Jersey.

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A well known Asbury Park gang member plead guilty to first degree aggravated manslaughter, first degree conspiracy to commit murder, and several weapons offenses in connection with a 2006 shooting which left a 21-year-old dead. In exchange for his guilty plea, the Monmouth County Prosecutor's Office agreed to recommend 30 years in prison for the 22-year-old member of the Bloods. According to the Asbury Park Press article, the victim was shot and killed outside the Frederick Douglas apartment complex on Mattison Avenue in Asbury Park as part of a dispute among members of the same Bloods sect. Several other gang members have also plead guilty in connection with this killing.

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A Maryland man was arrested and charged with sexually assaulting a 12-year-old Manalapan girl this past week. The 18-year-old was arrested early Saturday morning after the alleged victim's parents reported the incident to police. According to the Monmouth County Prosecutor's Office, the assault took place late Christmas night at the victim's home. The alleged sexual conduct is believed to be consensual but, based on the victim's age and the age difference between the parties, the State has charged him with aggravated sexual assault and endangering the welfare of a minor. For additional information, see the Asbury Park Press article entitled "Teen arrested, accused of sexually assaulting 12-year-old Manalapan girl".

In New Jersey, there is not a statutory rape charge. Instead, individuals facing charges like these are charged with aggravated sexual assault which provides:

§ 2C:14-2. Sexual assault

a. An actor is guilty of aggravated sexual assault if he commits an act of sexual penetration with another person under any one of the following circumstances:

(1) The victim is less than 13 years old;

(2) The victim is at least 13 but less than 16 years old; and

(a) The actor is related to the victim by blood or affinity to the third degree, or

(b) The actor has supervisory or disciplinary power over the victim by virtue of the actor's legal, professional, or occupational status, or

(c) The actor is a resource family parent, a guardian, or stands in loco parentis within the household;

(3) The act is committed during the commission, or attempted commission, whether alone or with one or more other persons, of robbery, kidnapping, homicide, aggravated assault on another, burglary, arson or criminal escape;

(4) The actor is armed with a weapon or any object fashioned in such a manner as to lead the victim to reasonably believe it to be a weapon and threatens by word or gesture to use the weapon or object;

(5) The actor is aided or abetted by one or more other persons and the actor uses physical force or coercion;

(6) The actor uses physical force or coercion and severe personal injury is sustained by the victim;

(7) The victim is one whom the actor knew or should have known was physically helpless, mentally defective or mentally incapacitated.

Aggravated sexual assault is a crime of the first degree.

b. An actor is guilty of sexual assault if he commits an act of sexual contact with a victim who is less than 13 years old and the actor is at least four years older than the victim.

c. An actor is guilty of sexual assault if he commits an act of sexual penetration with another person under any one of the following circumstances:

(1) The actor uses physical force or coercion, but the victim does not sustain severe personal injury;

(2) The victim is on probation or parole, or is detained in a hospital, prison or other institution and the actor has supervisory or disciplinary power over the victim by virtue of the actor's legal, professional or occupational status;

(3) The victim is at least 16 but less than 18 years old and:

(a) The actor is related to the victim by blood or affinity to the third degree; or

(b) The actor has supervisory or disciplinary power of any nature or in any capacity over the victim; or

(c) The actor is a resource family parent, a guardian, or stands in loco parentis within the household;

(4) The victim is at least 13 but less than 16 years old and the actor is at least four years older than the victim.

Sexual assault is a crime of the second degree.

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A decision came down from the Appellate Division last week regarding a defendant's right to a speedy trial in a drunk driving or driving while intoxicated (DWI) case in New Jersey. In State v. Tsetsekas, the Appellate Division held that the defendant's right to a speedy trial was violated when the State repeatedly failed to bring him to trial and there was an extensive delay in adjudicating his DWI charge. This is a violation of his due process rights in New Jersey. This extensive delay, almost one-year to prosecute the defendant for drunk driving, was based on the State's inability to provide discovery evidence (a videotape) and the State's failure to subpoena witnesses and prepare for trial. The State received four adjournments for the failure to provide the discovery evidence and at least three more were granted based on the State's witnesses (the State troopers) failure to appear at trial. As a result, the Appellate Division dismissed the charges against the defendant based on a violation of his due process rights and a violation of his right to a speedy trial in New Jersey. For a complete copy of the judicial opinion, see the New Jersey Judiciary website.

The Iler Law Firm currently has an appeal out of Morris County that is strikingly similar to this case. In our case, the Morristown Municipal Court took approximately 405 days to prosecute our client for driving while intoxicated (DWI). The reason for this extensive delay was the State's failure to provide basic discovery evidence which included the certification card of the officer who operated the breathalyzer machine and the videotape evidence of the field sobriety tests. Without the certification card, the breath test readings are inadmissible and the State can only try the case on the physical tests. However, without the videotape, it would also be very difficult for the State to try the case on the physical tests. As a result, the State requested and received a half-dozen adjournments to provide this discovery evidence. In fact, defense counsel requested and received a "try or dismiss" marking on one occasion and the Court failed to dismiss the case on the next listing and granted the State yet another additional adjournment. Thus, this new Appellate Division decision should really help our case and our argument which is scheduled in February before the Appellate Division in Trenton. I will keep you updated as to how the case finally turns out.

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