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

     I found an interesting article in the Asbury Park Press which concerns the hearsay doctrine. A 27 year old Hazlet woman is currently on trial for murder at the Monmouth County Superior Court. Judge Anthony Mellaci ruled that prosecutors will be able to confront the Defendant with a prior statement in which she denied being at the scene of the crime. The reason for this is an exception to the hearsay doctrine known as "prior inconsistent statements".

     Let me give you a brief explanation of the hearsay rule. The definition of hearsay is a previously made statement offered for the truth of the matter asserted. If you are offering the previously made statement for the purpose of proving that the statement is true, this is classic hearsay and should not be permitted. For example, the prosecutors could not ask the Defendant, in this case, "On [date], didn't you say that you weren't at the scene of the crime?". The reason for this is they are asking her about a prior statement in order to prove that she wasn't at the scene of the crime when the murder took place. That is the definition of hearsay. However, in this case, the prosecutors are not offering the statement to prove that she wasn't at the scene of the crime. They are offering the statement because she first told detectives that she wasn't at the scene of the crime when the murder took place and now, in her attorney's opening statement, he said that she was in the apartment when the murders took place but that she wasn't involved. As a result, if the Defendant takes the stand and testifies that she was at the scene of the crime at the time of the killing but she wasn't involved in the murder, the prosecutors will be permitted to offer her prior statement that she wasn't at the scene of the crime. This is known as a prior inconsistent statement and is an exception to the hearsay doctrine. For the entire article on this Monmouth County Murder Trial, see the Asbury Park press website.

     Thanks to Denis McLaughlin, professor at Seton Hall University School of Law, for being the best evidence professor in history and teaching me the intricacies of evidence and the hearsay rule. You wouldn't believe how many attorneys do not understand the Rules of Evidence and this proves to be a great advantage for myself and my classmates when doing trial work.

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     I am always amazed at the number of "simple possession of marijuana" charges I see in municipal courts throughout the State of New Jersey. I guess there are a lot more smokers out there than I ever realized. Simple possession of marijuana usually refers to the "less than 50 grams" offense. This is a "2C" criminal charge which means it results in a permanent criminal record if convicted. These simple possession of marijuana charges are governed by N.J.S.A. 2C: 35-10(3) and N.J.S.A. 2C:35-10(4). Often, individuals who are caught smoking pot or with a pipe, bong, or other smoking instrument are charged not only with possession of drug paraphernalia but possession of marijuana based on the residue in the drug paraphernalia. Thus, even if you don't have marijuana on you but you are caught with the instrument which was used to smoke it, you are facing possession of marijuana charges as well.

     Rather than merely plead guilty to a simple possession charge, which many individuals unfortunately do because they do not speak with an attorney, a defendant charged with simple possession is often eligible for a conditional discharge. This is a diversion which allows a defendant, who has never been in trouble before, to avoid this criminal charge on their permanent record. Essentially, the individual is given a one year probationary period where, if the individual stays out of trouble and is not arrested during the one year probationary period, the drug possession charge goes away forever. However, if the individual is arrested and charged with another offense, they are facing the original drug possession charge as well as the additional charges. In New Jersey, you are only allowed one conditional discharge in your life so use it wisely.

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     I represented a client in Keansburg Municipal Court this morning. I saw many individuals charged with "Disorderly Conduct". A wide range of circumstances can lead to a disorderly conduct charge: a fight, an argument, or some other improper behavior or offensive language.  Most defendants do not realize the seriousness of these charges. This is a "2C" criminal offense which leads to a permanent record if you are found guilty or plead guilty. The statute governing disorderly conduct in New Jersey is N.J.S.A. 2C: 33-2. The defendant also faces up to six (6) months in prison as a result of this petty disorderly persons offense.

     I was also amazed and slightly disappointed that individuals were willing to plead guilty to the disorderly conduct charge without speaking to a lawyer or, at the very least, speaking with the prosecutor to discuss a potential plea agreement. These disorderly conduct charges can often be amended down to a municipal or borough ordinance. This means that the defendant pleads guilty to a local ordinance rather than the "2C" criminal offense and avoids a permanent criminal charge on his or her record. The municipal ordinance results in a fine and the case is resolved. This can have a significant impact on a defendant's life as they avoid a permanent criminal record which is very important when looking for jobs, etc. Therefore, if you are charged with disorderly conduct in New Jersey, speak to a lawyer or at the very minimum meet with the prosecutor on your court date to determine if a plea agreement can be reached amending the criminal charge to a municipal ordinance.

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     A Toms River resident named Ryan Ward was recently charged with theft by deception and two counts of disorderly conduct for impersonating Yankees pitcher Joba Chamberlain. He faces more than a year in prison based on these charges. Allegedly Ward used his resemblance to Joba Chamberlain to impress women, sign autographs, and receive free food from atleast one local restaurant.

     Identity theft is a serious problem these days and should not be treated lightly. However, in this case these charges seem fairly ridiculous. Mr. Ward, although he should not have been impersonating Joba Chamberlain, did not harm or alarm anyone as a result of his actions. At the most he received some free food based on his false misrepresentations. Moreover, he returned to the bagel shop where he received the free food and paid for it. In fact, the bagel store owner himself said he didn't think that it was a big deal and that Mr. Ward should not go to prison for his actions.

     Here, it seems like a serious waste of time and taxpayer money to come down so hard on Mr. Ward. If the police had informed Mr. Ward of the serious potential consequences of his actions and "suggested" he cease impersonating Joba Chamberlain or face serious charges, justice would have been done. This would have avoided the necessity of court dates, adjournments, and the like which prevent the Belmar Municipal Court from tending to other, more pressing matters.

     The exciting and fairly interesting article concerning "The Impersonation of Joba Chamberlain" can be found at APP.com.

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     An important court decision came down this week concerning Governor John Corzine and the doctrine of "Executive Privilege". Basically, executive privilege is the power claimed by the Executive Branch (whether it be the President of the United States or, in this case, the Governor of New Jersey) to resist certain subpoenas, court orders, and other attempted interventions by the legislative and judicial branches. Although the doctrine of executive privilege is not contained in the Constitution, the Supreme Court of the United States ruled it to be an element of the separation of powers doctrine and is derived from the supremacy of the executive branch relating to its own area of Constitutional activity.

     In the recent decision by the Appellate Division, the Court held that Governor Corzine will not have to release emails exchanged with his ex-girlfriend, union boss Carla Katz. Originally, the Superior Court ordered that the Governor release these emails because the Corzine-Katz relationship "created a clear potential for conflict" that the public had a right to evalute. Both Corzine and Katz appealed this ruling to the Appellate Division. Now, the Appellate Division overruled Judge Paul Innes' order and found that the doctrine of executive privilege protects these communications. The emails contained information concerning a negotiation between the Governor and Katz for a new contract for state workers. Now, if Tom Wilson, the State Republican Chairman who sued for access to these emails, wishes to continue this fight, his only recourse is to appeal the Appellate Division decision to the New Jersey Supreme Court.

     Executive privilege is an important doctrine which maintains the separation of powers in our governmental system. Although it appears that more than half of New Jersey voters think that the governor should be forced to turn over these emails, I believe the court made the right decision here. It is imperative that legislators and judges are prevented from interfering in the essential operations of the executive branch. The doctrine of executive privilege was created to ensure that these other branches are prevented from doing just that. However, the lessons learned from the Nixon administration make it clear that there must be certain limits placed on executive privilege. I believe that these determinations should be made on a case by case basis by the courts. They must examine the factual circumstances surrounding the communications and determine whether the privilege protects the material or not. It looks like the court got it right this time.

     In an interesting aside, in reading the article I noticed a picture of Carla Katz. I didn't know it at the time, but Ms. Katz was a student at Seton Hall University School of Law at the same time I was there. I believe we had a legal writing class together. I didn't realize who Ms. Katz was at the time but now I know. The small world of New Jersey politics and attorneys.

     For further information on this decision, the Governor Corzine and Separation of Powers article is available on NJ.com.

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