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

A Middletown man recently had his possession of marijuana charges dismissed in Wall Municipal Court. Steven J. Greenberg, 57, lost his financial advisor job at Smith Barney after his arrest in October. He was charged with "simple possession of marijuana", less than 50 grams, under N.J.S.A. 2C:35-10(4).

N.J.S.A. 2C:35-10(4) provides, "It is unlawful for any person, knowingly or purposely, to obtain, or to possess, actually or constructively, a controlled dangerous substance. Any person who violates this section with respect to: (4) Possession of 50 grams or less of marijuana, including any adulterants or dilutants, or five grams or less of hashish is a disorderly person." A disorderly persons offense under New Jersey law includes up to six (6) months in prison if convicted.

Greenberg was charged when a man delivered an envelope containing a small amount of marijuana to Greenberg's work at Smith Barney. When the receptionist took the delivery of the package, she opened the envelope and found a suspected bag of pot inside. As a result, she contacted the police.

However, the State was unable to prove the necessary elements under the statute and the defendant moved to dismiss the charges. The State could not prove that the defendant possessed the marijuana or had arranged to obtain the marijuana in any way. As a result, the State could not satisfy the elements of the above statute and the charges were dismissed by Judge Thomas Brennan in Wall Municipal Court.

This was the proper outcome in this case. As you can see, it is essential to hire an experienced criminal defense attorney to combat your charges. In this case, the defendant had the charges completely dropped based on the State's failure to prove the necessary elements of the crime. For additional information on this case, see "Financial Adviser's Drug Possession Charge Dismissed".

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A Dover man who is charged with drunk driving and two counts of first degree aggravated manslaughter in the death of two teenagers is attempting to use "pathological intoxication" or "involuntary intoxication" as a defense to the aggravated manslaughter charges. This defense attempts to show that the Defendant became regularly intoxicated to the point where he had no control over his alcohol addiction and, therefore, no control over his actions.

The proffered defense is meritless with regard to his driving while intoxicated (DWI) charge. If the state can show that his blood alcohol content (BAC) was above the legal limit and that he was operating a vehicle at the time, he is guilty of drunk driving in New Jersey. However, the "pathological intoxication" defense may be helpful against the aggravated manslaughter charges.

Voluntary intoxication is not a defense to criminal charges. Thus, the fact that the defendant was drunk is typically irrelevant to the criminal charges against him or her. However, experienced criminal defense attorneys will sometimes assert an involuntary intoxication defense. This defense strategy typically requires proof (1) that the individual was an addict and was typically inebriated and (2) that the individual was inebrated at the time of the criminal act. In this case, the Defendant's blood alcohol level at the time of the accident was .305, nearly four times the legal limit in New Jersey of .08 BAC. In theory, defense counsel will argue that the defendant is "ill" and did not have the requisite mental capacity to commit a criminal act at the time of the incident. This is similar to an insanity defense. However, this is a very difficult defense to prove and the likelihood of success is marginal.

The "involuntary intoxication defense" is an extremely slipperly slope. The law bans a defense of voluntary intoxication because society does not want individuals avoiding criminal prosecution because they were intoxicated. The claim that "I was drunk so I hit my wife" should never be allowed to stand. As a result, if the court allows an expansive view of the "involuntary intoxication" or "pathological intoxication" defense it could come dangerously close to a defense of voluntary intoxication. To allow a defendant a defense because he got drunk and drove every day of the week instead of once a month does not seem like a justified result.

For additional information on this case, see Pathological Intoxication Defense in NJ.

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The New Jersey Supreme Court recently ruled on an interesting issue regarding the Fifth Amendment and the privilege against self-incrimination. In State v. Nyhammer, the Court held that neither the 5th Amendment nor the statelaw privilege against self-incrimination compels the suppression of a statement by a person, who has voluntarily chosen to speak to police after being advised of his Miranda rights, solely because the police did not inform him that he was a suspect.

When lawyers talk about Miranda rights or the Miranda warnings, we are talking about the following: "You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney...." I am sure you are all familiar with these warnings as we see them everyday on television and in movies. The Miranda protections come from the self-incrimination clause of the 5th Amendment. The 5th Amendment reads:

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

In the famous case of Miranda v. Arizona, the Court held that the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. “Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly, and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning.”

As a result, we are all entitled to Miranda protections when in a custodial interrogation scenario. The question then becomes whether the individual is in custody for the purposes of Miranda. In the recent NJ Supreme Court case above, the defendant was asked to come down to the station because his uncle had been accused of sexual abuse. In reality, the defendant had been accused of sexual abuse and he was the prime suspect in the case. The police read the defendant his Miranda rights prior to questioning him. When the police confronted the defendant with the allegations, the defendant confessed. On appeal, defense counsel argued that the police had an obligation to re-administer the Miranda warnings before questioning him once the defendant learned that he was a suspect. The Court rejected this argument and held that the defendant voluntarily and intelligently waived his rights when he agreed to be interviewed following the initial Miranda warnings.

A word to the wise: Always invoke your right to remain silent and request an attorney when you are being interviewed by the police. As this case illustrates, even if they don't tell you that you are a suspect in the case, they will be able to use any statements you make against you after advising you of your Miranda rights.

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On January 15, 2009 I posted an article about a Toms River resident who was arrested and charged with theft by deception and two counts of disorderly conduct for impersonating Joba Chamberlain, the New York Yankees star pitcher. Now, Ryan Ward, the 30 year old impersonator, pled guilty on Wednesday to three counts of Disorderly Conduct in Belmar Municipal Court as a result of his plea agreement with the Belmar Municipal Prosecutor. Judge Dennis Lavender sentenced Ward to the 1.5 days he already spent in Monmouth County jail when he was arrested and also to two (2) years probation. As part of his probation, Mr. Ward must continue the alcohol treatment he is currently receiving. Further, for the two year probationary period Mr. Ward must stay out of the local bars and restaurants where he previously impersonated Joba Chamberlain. Mr. Ward confessed, as part of his plea, to signing more than 100 autographs, dating many women, and receiving free food and drink through his impersonation of Joba Chamberlain.

This seems to be a fair result based on the facts and circumstances surrounding the charges. Mr. Ward is not a threat to society and his behavior did not have a serious or significant negative impact on anyone. However, Mr. Ward must learn his lesson from this experience and cease this type of conduct for good. Otherwise, he could find himself back in prison and next time he would certainly be facing indictable criminal charges at the county level for impersonating Joba Chamberlain and receiving benefits as a result of that deception.

 For additional information regarding this story, please visit APP.com for "The Sentencing of Ryan Ward, Joba Chamberlain Impersonator".

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I was driving home last night on the Garden State Parkway and I couldn't believe how many vehicles I saw with one headlight out. Driving around with a headlight out is asking to be pulled over in New Jersey. Under New Jersey Motor Vehicle laws, driving with a headlight out is a violation of N.J.S.A. 39:3-66 which provides:

§ 39:3-66. Maintenance of lamps, reflectors, etc

   All lamps, reflectors and other illuminating devices required by this article shall be kept clean and in good working order and, as far as practicable, shall be mounted in such a manner as to reduce the likelihood of their being obscured by mud or dust thrown up by the wheels.

As a result, driving with a headlight or taillight out is a clear violation of the statute. However, this is not the real problem. A violation of NJSA 39:3-66 merely results in a fine. However, this violation allows law enforcement to pull you over and often leads to other violations. For example, you can be charged with driving without a license, driving on a suspended license, possession of marijuana, or failure to exhibit documents once you are pulled over by the police and they are allowed to investigate further. Therefore, it is imperative that you make sure all your lights (headlights and taillights) are in good working order at all times. Otherwise, you will surely be pulled over and receive a ticket for a violation of NJSA 39:3-66 and you may be looking at additional violations depending on the circumstances of your traffic stop.

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I saw a movie this past weekend which required me to question assumptions I have about life, the legal system, and the legitimacy of law. The movie was "Judgment at Nuremberg", the classic 1961 film which depicts the trial of four judges who enforced Nazi law during World War II. This film contrasts individual liability with the liability of the State. Judges are held in such high regard in society and to see many of the atrocities that these men authorized really effected me. However, I also could relate to one of the characters who was a world renowned legal mind before World War II. He was clearly tortured by the decisions he made and was recognized for preventing further atrocities from being committed based on his position on the bench.

Judges must enforce the law. However, when a law is unjust and deprives citizens of their rights, a judge must remain independent and balance the rights of the individual and the rights of the State. In Germany's case, many of these judges would have been killed or at the very least imprisoned if they failed to execute the laws of the Nazi regime. But, as officers of the court, they should have refused to execute the agenda of Adolf Hitler. A law which is unjust or, in Germany's case, criminal should not be enforced and is illegitimate. Therefore, the German judges were responsible for their decisions and the actions which they authorized.

This was a great movie and is considered one of the top ten trial movies of all time. As a criminal defense lawyer, I thoroughly enjoyed the battle between the prosecutor and the defense attorney as well as the independent thinking and analysis of the chief judge of the military tribunal. If you haven't seen this movie, I highly recommend renting it.

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Simple assault in New Jersey is governed by N.J.S.A. 2C:12-1 which states:

§ 2C:12-1. Assault

   a. Simple assault. A person is guilty of assault if he:

(1) Attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or

(2) Negligently causes bodily injury to another with a deadly weapon; or

(3) Attempts by physical menace to put another in fear of imminent serious bodily injury.

Simple assault is a disorderly persons offense unless committed in a fight or scuffle entered into by mutual consent, in which case it is a petty disorderly persons offense. A disorderly persons offense leads to criminal record and the defendant faces up to six (6) months in prison if convicted.

A recent Appellate Division decision considered whether a headlock for thirty (30) seconds is sufficient to constitute simple assault, The court held, in State v. Stull, that the evidence was sufficient to satisfy a simple assault charge. State v. Stull, 403 N.J. Super 501 (App. Div. 2008). The defendant was convicted of simple assault and appealed. He argued that the evidence did not show that he caused "physical pain". Under N.J.S.A. 2C:11-1(a), bodily injury (as required in the above simple assault statute) means"physical pain, illness, or any impairment of physical condition". In this case, the defendant placed and held the victim in a headlock for twenty (20) to thirty (30) seconds, squeezed his neck, and yanked and swung him around. At trial, there was no testimony about the victim's pain and he did not sustain bruises or receive treatment for any injuries. The Appellate Division held that the State met its obligation to prove guilt beyond a reasonable doubt through evidence of the defendant's conduct and inferences reasonable based on the evidence as a whole.

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