Julio Cesar Severino and Yavalier Rodriguez drove to Jersey City in a vehicle owned by Severino’s fiancé.  When they reached their destination in Jersey City, Severino parked the vehicle on the street and exited the driver’s side.  Rodriguez exited the passenger side.  An eyewitness testified that about eight seconds after  Severino and Rodriguez exited the vehiclel, they were struck and killed by defendant’s vehicle.  The insurance policy covering the defendant’s vehicle provided coverage in the amount of $25,000 per person and $50,000 per occurrence.  Therefore, plaintiffs sought underinsured motorist coverage under the policy covering the vehicle they had been driving just before the accident. 

The underinsured motorist provision of the insurance policy covering the plaintiffs’ vehicle provided that the vehicle’s insurance policy would pay compensatory damages that an “insured” is entitled to recover from the owner or operator of an underinsured vehicle as a result of bodily injury sustained in an accident.  The policy defined “insured” as a “named insured” or a family member, and “any other person occupying your covered auto.”  The trial court held that Severino and Rodriguez were occupants of their vehicle at the time of the incident and ordered the insurance company to provide coverage.  However, the Appellate Division disagreed and reversed.

In coming to its conclusion, the Appellate Division examined several prior cases related to this issue.  The first case examined by the Appellate Division was Mondelli v. State Farm.  In that case, the plaintiff was standing next to his girlfriend’s vehicle with his arm resting on the roof of the car when he was struck by another vehicle.  In that case, the New Jersey Supreme Court held that the plaintiff was “occupying” his girlfriend’s vehicle for purposes of insurance coverage.

In Torres v. Travelers Indemnity Co., a delivery truck had delivered several packages to a warehouse where plaintiff was the manager.  Shortly after the delivery truck left, plaintiff realized that one package was missing.  Plaintiff then got in his employer’s van and followed the delivery truck.  After discovering the delivery truck parked nearby, the plaintiff exited the van and asked the driver if he could look around in the truck for the missing package.  Plaintiff then climbed into the truck and found the package.  While walking back to his van, plaintiff was struck by another vehicle.  Again, in that case, the New Jersey Supreme Court held that plaintiff was “occupying” his employer’s van for purposes of underinsured motorist coverage.   

The Appellate Division distinguished the present case by holding that Severino and Rodriguez did not leave the vehicle in order to perform some essential task and they were not touching the vehicle at the time of the accident.  Rather, the Appellate Division held that Severino’s and Rodriguez’s use an occupancy of the vehicle had essentially ended.  Therefore, the Court held that they were not covered by the underinsured motorist insurance policy covering the vehicle they were driving just eight second prior to the accident.

This Appellate Division decision is particularly atrocious when viewed in conjunction with the use of step-down provisions by insurance companies and our courts’ jurisprudence related to step-down provisions.  Step-down provisions provide that if a plaintiff is entitled to coverage under an underinsured motorist policy applicable to a vehicle that the plaintiff is driving, but is concurrently covered by another underinsured motorist policy, the coverage is “stepped-down” to the limit of the lower policy. 

So, for example, if a plaintiff is driving a company vehicle covered by an underinsured motorist policy that provides for $1 million in coverage and is involved in a serious accident where the defendant’s insurance is not sufficient to cover compensatory damages, the amount of coverage provided by the underinsured motorist policy can be stepped-down to the limit on a personal policy applicable to the plaintiff covering a vehicle that is sitting in the plaintiff’s driveway at home, and had no involvement with the accident whatsoever.  Therefore, if the plaintiff has a policy providing for $100,000 in underinsured motorist coverage on his personal vehicle, the underinsured motorist policy covering the business vehicle that was actually involved in the accident is only required to pay a maximum of $100,000, even though the policy limit is $1 million. 

In the present case, the Appellate Division refused to look to the insurance policy covering the vehicle that the plaintiff’s had just exited eight seconds prior to the accident to provide underinsured motorist coverage to the plaintiffs.  However, in the context of step-down provisions, our courts will shamelessly look to policies covering vehicles that were not even involved in the accident at all to lower the limit of the amount of money an insurance company has to pay to the victim of an accident.  Anyone involved in an automobile accident in New Jersey is facing an uphill battle with insurance companies that will strenuously fight as long and hard as possible to deny coverage and unsympathetic courts.  A New Jersey personal injury lawyer or New Jersey auto accident lawyer is essential to helping plaintiffs involved in auto accidents fight that battle.

In this case, a victim alleged that the defendant had sexually assaulted her several years ago, when she was about six or seven years old.  At the time, the defendant was thirteen years old.  A Cape May County Assistant Prosecutor and two detectives filed a complaint with a judge in the Family Part and asked the judge for authority to detain the defendant.  The judge stated that he was familiar with defendant from another case, where the defendant was represented by counsel and granted the request, but told the prosecutor to bring defendant before him at 9:00 a.m. the next morning.

The next day, the detectives apprehended the defendant and transported him to the Cape May County Prosecutor’s office.  At the office, defendant was processed and then read his Miranda rights.  Defendant waived his rights and agreed to speak to the detectives.  During the course of the interrogation, defendant admitted that he had sexual contact with the victim.  The detectives then brought defendant before another judge at 11:00 a.m., who ordered defendant to be detained.

The defendant moved to suppress the statements he made to the police as obtained in violation of his Sixth Amendment right to counsel.  The trial court agreed with defendant that his right to counsel attached at the time the juvenile complaint was filed, and therefore defendant could not have waived his right to counsel without the approval of his attorney.  Therefore, the State should not have initiate the conversation with the defendant that resulted in the confession.  As noted above, the Appellate Division reversed.

The New Jersey Supreme Court first noted that the legislature has granted to juveniles all defenses available to an adult charged with a crime, offense or violation.  Furthermore, all constitutional rights guaranteed to adult criminal defendants apply to juveniles except for the right to indictment, the right to a jury trial, and the right to bail.  The Supreme Court of the United States has held, and the New Jersey Supreme Court has agreed, that the right to counsel attaches at the initiation of adversary judicial criminal proceedings against the defendant.   Adversary judicial criminal proceedings include proceedings that are initiated by a formal charge, preliminary hearing, indictment, information, or arraignment. 

New Jersey, however, has parted ways with federal law on the issue of waiver of the right to counsel.  Under federal law, a defendant can waive his right to counsel at any time, so long as he does so knowingly and voluntarily.  Under New Jersey law, after an indictment, the State should not initiate a conversation with defendants without the consent of defense counsel.  The Court then recognized that even though the juvenile justice system has rehabilitation as its predominate mission, punishment is still a component of that system. 

The New Jersey legislature has also enacted a law that says that a juvenile has the right to be represented by counsel at every critical stage of proceedings against the juvenile.  Moreover, during delinquency proceedings, a juvenile cannot waive any rights except in the presence of counsel, and after a parent or legal guardian has had an opportunity to confer with the juvenile and the juvenile’s counsel.  The filing of a juvenile complaint constitutes a critical stage in the proceedings where a crime is alleged in the complaint because a prosecutor’s consent is required before the complaint can be diverted.  Because the defendant did not waive his right to counsel in the presence of his counsel and after consulting with counsel, the Court held that his statements should be suppressed.

Anyone charged with a crime in New Jersey should contact a New Jersey criminal defense lawyer for assistance.  Defendants in criminal proceedings have a right to counsel, as well as many other constitutionally and statutorily protected rights, and a New Jersey criminal defense lawyer can help a suspect ensure that those rights are respected by the State.

In Nunez-Valdez, the defendant, a legal permanent resident of the United States, pled guilty to fourth degree criminal sexual contact.  Defendant had originally been charged with one count of second-degree attempted sexual assault and four counts of fourth-degree criminal sexual contact.  The second degree charge carried a presumption of imprisonment for a term between five and ten years.  The defendant accepted a plea deal wherein he pled guilty to one count of fourth degree criminal sexual contact in exchange for a sentence of probation.

Shortly thereafter, a United State Immigration Court ordered defendant to be deported to his native Dominican Republic because of his conviction of fourth degree criminal sexual contact.  After exhausting his appeals in the immigration system, the defendant was eventually deported.  Defendant then sought post-conviction relief from the New Jersey state court system arguing that he would not have accepted the guilty plea if he had known that he would be deported.  Even though the plea form that all criminal defendants must fill out and sign before they are permitted to plead guilty advises defendants that they may be deported as a result of the plea, the defendant in this case argued that neither his attorney, nor the Spanish interpreter explained or read the form to him.

Under New Jersey law, the possibility of deportation, like other penal consequences of guilty pleas, is a consequence that a defendant must have notice of before he can knowingly enter into the plea.  Under the immigration laws in effect at the time that the defendant entered into the guilty plea in this case, the classification of a legal permanent resident as an “aggravated felon” was a complete bar to relief from deportation.  The term “aggravated felony,” was defined by the federal government as “murder, rape, or sexual abuse of a minor.”  Therefore, because defendant pled guilty to fourth degree criminal sexual contact with a seventeen year-old girl, deportation would be mandatory.  In the present case, defendant’s attorney at trial had told defendant that there would be no immigration consequences of his guilty plea. 

After determining that the defendant had not been adequately advised of the immigration consequences of his plea and allowing the defendant to withdraw the plea, the New Jersey Supreme Court examined the larger issue of ensuring that non-citizen defendant’s are fully aware of the immigration consequences of guilty pleas to criminal charges in state court.  The Supreme Court accepted the suggestion of the Association of Criminal Defense Lawyers of New Jersey and the American Civil Liberties Union that plea forms should inform non-citizens that “if your plea of guilty is to a crime considered an aggravated felony under federal law you will be subject to deportation/removal.” 

As this case illustrates, criminal charges in New Jersey can have very serious consequences.  It is important to discuss all of the consequences of criminal charges with a New Jersey criminal defense lawyer to get the best possible outcome under the circumstances.

Defendant James Robinson was suspected of being a cocaine dealer.  In their affidavits in support of getting a search warrant, police officers alleged that they did two controlled buys of cocaine from defendant using undercover police officers and confidential informants.  Police were granted a warrant to search defendant’s apartment and to seize contraband.  The warrant specifically provided that law enforcement were to knock and announce their presence and purpose when executing the warrant. 

When executing the warrant, thirteen police officers converged on defendant’s apartment.  Officers knocked and announced their purpose, but did not receive any immediate response.  After waiting about twenty to thirty seconds, police forcibly entered defendant’s apartment and seized drugs, cash, a paper ledger and a scale.  As a result, defendant was arrested and indicted for third-degree distribution of cocaine, second-degree distribution of cocaine within 500 feet of a public housing facility, third-degree possession of cocaine, and third-degree possession of cocaine with intent to distribute.

Defendant moved to suppress the evidence on two separate grounds: (1) defendant alleged that there was insufficient probable cause for the warrant because some of the statements contained in the affidavit in support of the warrant were false; and (2) police had failed to knock and announce their presence when executing the warrant.  With respect to defendant’s first claim, the New Jersey Supreme Court held that there was probable cause and deferred to the trial court’s factual findings.  The second ground was the main subject of the Supreme Court’s opinion in this case.

Under the Fourth Amendment to the United States and Article I, paragraph 7 of the New Jersey Constitution, police are normally required to get a warrant before they may enter a citizen’s home and seize evidence.  The common law has added to the general warrant requirement a requirement that when police conduct a search of a citizen’s home, they must first knock on the door and announce their presence and purpose.  Some historians date this requirement all the way back to the time of the Magna Carta. 

However, the courts have carved several exceptions into the “knock and announce” rule.  For instance, police may dispense with the “knock and announce” rule where immediate action is required to preserve the evidence, the officer’s peril would be increase, or the arrest or seizure would be frustrated.  The Supreme Court then examined the issue of how long officers must wait after they knock and announce their presence before they can forcibly enter the premises.  The Court noted that police are governed by a reasonableness standard, that is, police must wait a reasonable time under the facts known to the police at the time of the search.  The Court also noted that in narcotics cases, the question of reasonableness does not stem from the amount of time it would take an occupant to answer the  door after the knock, but rather, from the amount of time it would take an occupant to destroy any narcotics that are present in the dwelling.  Other factors courts will consider are: a suspect’s violent criminal history; an informant’s tip that weapons will be present; the risks to officers’ lives or safety; the size or layout of the defendant’s property; whether persons other than the defendant reside at the property; whether others involved in the crime are expected to be present; and the time of day.

The Court then held that based on the totality of the circumstances in this case, and most importantly, the potential for destruction of evidence if entry was delayed any further, required the Court to find that there was sufficient credible evidence in the record to support the trial court’s finding that the 20 to 30 second delay between the police knocking and announcing their presence and the forcible entry into defendant’s home was reasonable. 

The Court refused to decide the question of whether the use of a “flash bang” device was reasonable on a technicality.  The Court argued that since defendant did not raise that issue to the trial court, he was not entitled to raise the issue on appeal.  Accordingly, the Court upheld defendant’s conviction and sentence on all four counts.  Anyone charged with a crime in New Jersey should contact a New Jersey criminal defense lawyer for assistance.

One of the most prominent individuals charged in this sweep is Hoboken Mayor Peter Cammarano.  According to the criminal complaint filed in federal district court, Mr. Cammarano allegedly accepted payments amounting to $25,000 from a witness who had been cooperating with the FBI in violation of 18 U.S.C. 1951.  The cooperating witness had been charged with bank fraud in federal court in May 2006, and had presumably been offered a deal by prosecutors in order to assist them with future investigations.   Moreover, it appears from the criminal complaint that any cash bribes that were allegedly given to Mr. Cammarano went through Michael Shaffer, a Commissioner on the North Hudson Utilities Authority.

Also charged under 18 U.S.C. 1951 was Ridgefield Mayor Anthony Suarez.  According to the criminal complaint, it is alleged that Mr. Suarez accepted $10,000 in bribes from a cooperating witness in exchange for political favors, including favorable treatment for property development projects.  The money was allegedly given by the cooperating witness in cash to Vincent Tabbachino, a proprietor of a tax preparation business, who then wrote a check to a legal fund maintained by Suarez.

New Jersey Assemblyman Daniel Van Pelt was also charged under 18 U.S.C. 1951 for allegedly accepting a $10,000 bribe in exchange for helping a cooperating witness, posing as a real estate developer, to obtain a Coastal Area Facility Review Act permit to develop properties in Ocean County.  Van Pelt allegedly accepted the cash bribe at a meeting with the cooperating witness at a restaurant in Atlantic City.

Leona Beldini, the Deputy Mayor of Jersey City was charged in a criminal complaint, along with Edward Cheatam and Jack Shaw, with accepting illegal campaign contributions in exchange for political favors.  Joseph Cardwell, a Commissioner of the Jersey City Municipal Utilities Authority was charged under 18 U.S.C. 666 for allegedly bribing a Jersey City official.  Several Jersey City officials, including Guy Catrillo, a Planning Aide for the Jersey City Division of City Planning, Mariano Vega, the Jersey City Municipal City Council President, and Lavern Webb-Washington, a candidate for Jersey City council, were also charged with accepting bribes in exchange for official favors.   Jeffrey Williamson, a Lakewood Township Housing Inspector, was also charged with accepting bribes.

In a separate complaint, two rabbis, Mordchai Fish and Lavel Schwartz, were charged, along with Abraham Pollack and Naftoly Weber with money laundering under 18 U.S.C. 1956.  A cooperating witness allegedly engage defendants Fish, Schwartz, Pollack, and Weber in funneling money through various organizations for the purpose of concealing the proceeds of illegal activities. 

Others arrested in the sweep include Moshe “Michael” Altman, who is alleged to have violated 18 U.S.C. 1951 by assisting in arranging for cash bribes to a Jersey City Building Inspector.  Altman was also charged for money laundering under 18 U.S.C. 1956.  Shaul “Charles” Amon was charged with bribing a Lakewood Housing Inspector.   Others charged in separate money laundering complaints include Michael Altman, Itzak Friedlander, and Shimon Haber.   Defendant Saul Kassin, the Chief Rabbi of a synagogue located in Brooklyn, was charged with money laundering along with alleged co-conspirators Edmond Nahum.  Also alleged to have been involved in the money laundering was Eliahu Ben Haim, the Chief Rabbi of a synagogue located in Deal.  A cooperating witness allegedly made checks payable to charitable organizations run by the defendants in an effort to conceal proceeds of illegal activities, namely the sale of counterfeit goods.  Arye Weiss was charged with money laundering under 18 U.S.C. 1956 and operating an unlicensed money transmitting business under N.J.S.A. 17:15C-24.

One defendant, Levy Izhak “Issac” Rosenbaum was charged with transferring human organs for valuable consideration, in violation of 18 U.S.C. 371.  An undercover FBI agent allegedly posed as a man whose uncle was in need of a kidney.  Rosenbaum allegedly offered to send blood samples of the undercover agent’s uncle to Israel for the purpose of finding a matching kidney donor.  Rosenbaum allegedly asked for $160,000 to procure a donor in Israel for the kidney transfer.

These defendants face very serious charges that can result in imprisonment for terms of twenty years or more.  However, it appears from many of the criminal complaints that these defendants have legitimate defenses, such as entrapment.  A New Jersey criminal defense lawyer would be able to assist any defendants charged with conspiracy, bribery, corruption, and money laundering with developing a defense to the charges.  At least one New Jersey criminal defense lawyer, Joseph Hayden, who is representing Peter Cammarano, has announced his client’s innocence and plans to fight these charges until his innocence is proven.

In the Marshall case, a police detective requested a warrant to search 105 Wayne Avenue in Trenton.  The apartment building contained two unites and the detective did not know which unit the main suspect, Allen Daniels, had entered to obtain drugs.  While being observed by police officers, Daniels and a confidential informant drove to 105 Wayne Avenue.  Daniels entered the building while the confidential informant waited in the car.  Approximately five minutes later, Daniels emerged from the apartment building with defendant Marshall and sold drugs to the confidential informant.  The confidential informant was unable to tell the police the exact apartment from which Daniels and Marshall had retrieved the drugs.  Neither PSE&G, the Division of Motor Vehicles, nor the State Bureau of Identification were able to assist in identifying which unit within 105 Wayne Avenue Daniels had entered.

The detective applied for a search warrant for a search of the apartment within the premises of 105 Wayne Avenue to which Daniels had “possession, custody, control or access.”  The search warrant contained conditional language, which provided that the search warrant for 105 Wayne Avenue would only be executed if and only if “Allen Daniels is secured outside 105 Wayne Avenue and (2) that a search of Allen Daniels reveals documentation or keys which identify the specific apartment inside 105 Wayne Avenue to which Allen Daniels has possession, custody, control or access, or if he divulges such information to the officers executing the search warrant for his person.”  The trial court approved the search warrant, including the conditional language.

A few days later, the police executed the search warrant as to locations other than 105 Wayne Avenue.  Daniels was apprehended at an address in Lawrenceville.  Daniels was arrested and informed of his rights under Miranda.  During questioning, Daniels revealed that his source for drugs stayed in the first floor apartment at 105 Wayne Avenue.  Based on information given to them by Daniels, police executed the search warrant for the first floor apartment of 105 Wayne Avenue.  Officers found defendant Marshall at 105 Wayne Avenue, along with cocaine, marijuana, and several firearms.  Marshall was arrested and charged with various drug and weapon charges.

In analyzing the constitutionality of the search warrant in this case, the New Jersey Supreme Court first noted that both the United States Constitution and the New Jersey Constitution provide that “no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the papers and things to be seized.”  This language requires a court to make a practical, common sense determination whether, given all the circumstances, there is a fair probability that contraband or evidence of a crime will be found in a particular place.   The New Jersey Supreme Court has held that the probable cause determination must be made based on the four corners of the supporting affidavit and the sworn testimony before the judge issuing the warrant.  The Court also noted that it has widely been recognized, both by New Jersey courts and the United States Supreme Court, that when the place to be searched is within a multi-unit apartment building, the search warrant must exclude units for which the police do not have probable cause.

The Court also noted that the warrant must be issued by a neutral and detached magistrate.  In applying for a search warrant, police are entitled to all of the reasonable inferences which reasonable men can draw from evidence; however, the Supreme Court has noted that those inferences must be drawn by a neutral and detached magistrate, instead of the police officer engaged in ferreting out crime.  In the present case, it was clear from the text of the warrant that the police did not know which unit within 105 Wayne Avenue they had probable cause to search.  The Court noted that the warrant had two fatal flaws: first, the probable cause determination was not made prior to the warrant being issued because the anticipated conditions listed in the warrant were to be satisfied after the warrant was issued; and second, because the police were authorized to determine if the conditions were satisfied, the role of the neutral and detached magistrate was delegated to the police.

The State also argued that, irrespective of any infirmities in the affidavit or warrant, the police still acted in good faith and followed the procedure approved by the trial court, and therefore suppression is not justified.  The Court disagreed, and held that the police’s failure to comply with the particularity requirement and the failure to have a neutral magistrate determine whether the conditions in the warrant were satisfied are not merely technicalities, but constitutional violations.  Accordingly, the Supreme Court held that the search was unconstitutional and the evidence should be suppressed.  Anyone arrested or charged with a crime in New Jersey should contact a New Jersey criminal defense lawyer for assistance.

Defendant Manuel Fajardo-Santos was charged with a first-degree and third-degree crime, and bail was set at $75,000 on the face of the complaint.  Defendant was not given the 10% option, and was therefore required to post the entire $75,000 in cash, bond or property.  At a mandatory bail review hearing the next day, the judge upheld the bail set forth in the complaint and defendant remained in jail.

County officials in Morris County, where the defendant was being held, notified U.S. Immigration and Customs Enforcement (”ICE”) of defendant’s arrest and advised ICE that they believed defendant to be an undocumented immigrant.  Defendant was indicted by a grand jury for first and second-degree crimes.  Four months after defendant’s arrest, ICE lodged a detainer against the defendant at the Morris County Correctional Facility.  The purpose of the detainer was to allow ICE to take custody of the defendant should he be released from the county jail.

A few weeks later, defendant posted bail using a professional surety and was released from state custody.  Defendant was then turned over to federal custody on $15,000 to await deportation proceedings.  After the Morris County prosecutor’s office was advised of the bail set by federal officials, the State moved to increase the defendant’s bail in Morris County.  The State argued that the ICE detainer increased the defendant’s risk of non-appearance at the trial for the criminal charges he faced in Morris County; therefore, this was a change in circumstance, which justified an increase in bail.  The trial judge agreed and set bail to $300,000, cash only.  Defendant was returned from federal custody to state custody.  The New Jersey Supreme Court upheld the increase in bail.

As the Court noted, ICE is responsible for enforcing federal immigration laws.  When state officials arrest someone for an indictable offense (felony), they notify ICE of the arrest.  ICE then determines whether the person is subject to deportation.  If ICE decides that it would like to deport the person, ICE can lodge a detainer with the state agency holding the individual so that the agency is aware that ICE seeks custody of the person for the purpose of deportation.  An undocumented immigrant may be deported regardless of whether there are state criminal proceedings pending against the person, and state criminal proceedings are not reason to delay the deportation.

The New Jersey State Constitution provides that anyone facing criminal charges is bailable by sufficient sureties.  In determining the appropriate amount for bail, the courts looks to ensure that the person will appear for trial.  According to the New Jersey Supreme Court, judges must engage in a fact-sensitive analysis to determine the appropriate bail in any particular case.  Therefore, the Court reasoned, if the facts materially change after bail is set, the judge is free to reconsider the bail that was originally set.

The issue in the present case was not whether immigration status is a factor that a judge can consider bail; rather, whether a judge can increase bail as a result of a detainer being lodged.  The Supreme Court further reasoned that by lodging a detainer, ICE places the state agency holding the defendant in custody and the defendant on notice that “what was once a theoretical possibility of deportation has become a concerted effort by the federal government to achieve that outcome.”

The Court then went on to reason that some defendants might use the detainer process to avoid punishment.  Essentially, the defendant will seek to avoid prosecution and punishment by posting bail in the state court and permitting the federal government to return them to their native country.  Therefore, the lodging of a detainer is a change in circumstances, which permits to the trial court to reconsider the bail that was originally set.  The Court warned that prosecutors should make motions to increase bail as soon as a detainer is lodged, and if possible, should not wait until after the defendant has already made bail.

Anyone arrested or charged with a crime in New Jersey should contact a New Jersey criminal defense lawyer for assistance.

In the Osorio case, the defendant was charged with several drug charges.  The case proceeded to trial, and during the jury selection process, the prosecutor used her first six peremptory challenges to strike four African-American and two Hispanic jurors.  At this point, the criminal defense lawyer representing Mr. Osorio objected, and told the trial judge that his client had a right to be tried by a jury of his peers, and that no groups should be excluded.  The trial judge cautioned the prosecutor, but did not restart the jury selection process.  After the caution, the prosecutor used her next peremptory challenge to strike another African-American juror.  At sidebar, the trial judge was satisfied that the prosecutor’s reason for striking the juror was not motivated  by racial bias.  The defendant was convicted at trial of various drug charges and was given an aggregate sentence of seven years imprisonment.

The Appellate Division remanded the case to the trial judge to allow the prosecutor to explain her reasons for excluding the African-American and Hispanic jurors.  During the remand hearing, the prosecution explained their non-race specific non-discriminatory reasons for striking the jurors.  The trial judge was again satisfied with these explanations and upheld the conviction.  The defendant’s attorney disagreed with some of the prosecution’s arguments, and lamented the fact that neither he, nor the Court, had a better recollection of what had transpired during the jury selection process that had taken place three years earlier.  The Appellate Division then reversed the conviction and remanded the case for a new trial.  The State appealed to the Supreme Court of New Jersey.

In applying the New Jersey State Constitution to the circumstances of this case, the Supreme Court determined that the prior three-step rule for determining whether peremptory challenges were racially motivated had to be refined.  Therefore, for a party to show that jurors had been struck, a new three step process must  be followed.  The first step is that the party who is alleging that a peremptory challenge was motivated by racial or ethnic bias must produce sufficient evidence to draw an inference that discrimination has occurred.  Among the factors that a court can look at are whether the prosecutor struck most or all of the members of an identified group from the venire, the prosecutor used a disproportionate number of peremptory challenges against a particular group, and the challenged jurors are the same race as the defendant.  The second step is that the party who is  alleged to have offended the requirement that peremptory challenges be exercised without racial or ethnic bias must satisfy the court that he exercised such peremptory challenges on grounds that were reasonably relevant to the particular case on trial or its parties or witnesses in the particular case.  The third step is that “the trial court must judge the contestant’s prima facie case against the proponent’s rebuttal to determine whether the contestant has carried the ultimate burden of proving, by a preponderance of the evidence, that the proponent exercised its peremptory challenges on constitutionally-impermissible grounds of presumed group bias.”  In making this final determination, the trial court can look at whether the party exercising the peremptory challenge has applied the proffered reasons even-handedly to all prospective jurors, the overall pattern of the party’s use of peremptory challenges,  and the composition of the jury ultimately selected. 

In the Osorio case, the defendant was a Hispanic male.  When the defendant’s criminal defense lawyer objected to the prosecutor’s use of peremptory challenges, the trial court did not engage in the three step process to determine whether the peremptory challenges were motivated by ethnic or racial bias.  The trial court also did not require the prosecutor to explain the non-discriminatory reasons for all of the peremptory challenges exercised.  This process was not conducted until three years later, when memories had already faded.  Therefore, the New Jersey Supreme Court decided that the only fair resolution would be to vacate the conviction and to remand the case for a new trial. 

Important legal issues often arise during the course of a criminal prosecution.  Therefore, anyone accused of a crime in New Jersey is well served to have a New Jersey criminal defense lawyer representing his or her interests in court.

Several individuals, including Yi Feng Reid of Bergen County, New Jersey, were charged in a 17-count indictment on Tuesday, June 30, 2009, with conspiracy, theft by deception, identify theft, and money laundering for an alleged mortgage scheme.  The Attorney General’s office alleges that the suspects were involved in the mortgage and small business loan industry, and unlawfully used the identities of their clients to obtain mortgages and other loans.  It is alleged that the group obtained over $1 million in loans using false information.

In a separate indictment, commercial loan broker Ramon Coscolluela of Union, New Jersey was charged with theft by deception and attempted theft by deception for allegedly falsifying five loan applications submitted to a bank on behalf of his clients.   It is alleged that four of the loan applications were rejected, but the fifth was granted.  When the borrower defaulted on the loan, it prompted the bank to review all five applications.  The bank alleges that the applications contained false information, inflating the assets of the applicants to increase their chances of obtaining a loan.

In a third indictment, Terrance Givens of East Orange, New Jersey, was charged with one count of theft by deception for allegedly misrepresenting his employment history in a mortgage application.  The Attorney General’s office alleges that Mr. Givens listed a business founded by a relative as his employer; however, for all intents and purposes, that business allegedly never existed.  On the basis of the information provided to the bank, Mr. Givens was given a $200,000 mortgage loan, which was subsequently foreclosed.

Given the current state of the economy and housing market, many individuals have resorted to desperate measures to obtain loans and mortgages, and the State is beginning to crack down on these practices.  As shown by the cases cited above, the result is often very serious charges that carry heavy presumptive prison sentences and very high fines.  For this reason, it is important that anyone accused of a theft offense in New Jersey contact a New Jersey criminal defense lawyer. 

In most mortgage fraud cases, the suspect is usually charged with theft by deception.  Under the New Jersey theft by deception statute, N.J.S.A. 2C:20-4, “a person is guilty of theft if he purposely obtains property of another be deception.  A person deceives if he purposely: (a) creates or reinforces a false impression, including false impressions as to law, value, intention or other state of mind, and including, but not limited to, a false impression that the person is soliciting or collecting funds for a charitable purpose; but deception as to a person’s intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise; (b) prevents another from acquiring information which would affect his judgment of a transaction; or (c) fails to correct a false impression which the deceiver previously created or reinforced, or which the deceiver knows to be influencing another to whom he stands in a fiduciary or confidential relationship.  The term ‘deceive’ does not, however, include falsity as to matters having no pecuniary significance, or puffing or exaggeration by statements unlikely to deceive ordinary persons in the group addressed.” 

Theft offenses are generally graded by the amount of money involved in the alleged theft.  If the amount of money involved is over $75,000, which is the case in most mortgage fraud cases, theft is graded as a second degree crime.  The statutory punishment for a second degree crime is a prison sentence between five years and ten years, and a fine of up to $150,000.   Moreover, second degree crimes carry a presumption of imprisonment, which means that anyone convicted of a third-degree crime should presumptively be sentenced to a term of imprisonment unless the court finds that imprisonment would be a serious injustice.  If the amount of money involved is more than $500, but not more than $75,000, theft is graded as a third degree crime.  A third degree crime carries a prison sentence between three and five years, and a fine of up to $15,000.   If the amount involved in the theft is between $200 and $500, it is graded as a fourth degree crime, which carries a prison sentence of up to18 months, and a fine up to $10,000.

Another common charge in mortgage fraud cases is money laundering.  Under the N.J.S.A. 2C:21-25, money laundering involves transporting or possessing property known or which a reasonable person would believe to be derived from criminal activity, or engaging in a transaction involving property known or which a reasonable person would believe to be derived from criminal activity.  The mens rea requirement for money laundering is that the suspect must have an intent to facilitate or promote criminal activity,  to conceal or disguise the nature, location, source, ownership or control of the property, or to avoid a transaction reporting requirement.  With respect to grading, if the amount of money involved is $500,000 or more, it is a crime of the first degree, which carries a presumptive term of imprisonment between ten and twenty years.  If the amount of money involved is at least $75,000 but less than $500,000 the offense constitutes a crime of the second degree.  Otherwise, the offense constitutes a crime of the third degree.

As these cases illustrate, mortgage fraud often gives rise to very serious criminal charges with very serious consequences.  Therefore, anyone charged with any crime related to mortgage fraud, whether it is theft, theft by deception, money laundering, or any other violation of the New Jersey Criminal Code, should contact a New Jersey criminal defense lawyer for representation.  Not only do these offenses carry hefty penalties, but also very long presumptive prison terms.

In September of 1983, the bodies of Nick DeTournay and Barbara DeTournay were discovered by police in the waters of Barnegat Bay in New Jersey.  A police investigation revealed that they had both been killed by multiple gun shot wounds.  Investigators developed a theory that the DeTournay’s had been killed in the course of a drug deal involving Paul Kamienski, Anthony Alongi, and Joseph Marsieno.  At trial, Kamienski’s girlfriend testified that Kamienski had facilitated a cocaine deal between the DeTournays and Anthony Alongi.  A government informant also testified that a drug deal was scheduled for September 18, 1983 between the DeTournay’s, who were going to sell a large quantity of cocaine to Alongi.  Several witnesses testified that they heard from Alongi that a large quantity of cocaine would be available soon.  Marsieno’s girlfriend testified that Marsieno was supposed to pick up the cocaine and that at one point he said, “those lousy MF’ers, they wanted to see the money first.  I have no intention of paying them any money.  I’ll kill them before they get any of my money.”

Kamienski’s girlfriend testified that a short time after the deal allegedly occurred, Kamienski drove her to Alongi’s house and instructed her to wait in the kitchen.  She did not heed his instructions and went outside to a dock behind Alongi’s house.  She saw Kamienski standing by the dock, and a blanket and sleeping bag with what appeared to be a body.   After Alongi saw Kamienski’s by the girlfriend, he took her upstairs and showed her a gun.  He warned her that if she was not quite,  she would “end up like her friends.”  According to Kamienski’s girlfriend, Kamienski then told her that night that what happened was out of his control and if they said anything about it, they would both be in danger.   He also allegedly told her that “Nick went first” and “Barbra did not suffer.”  Kamienski’s girlfriend also testified that the blankets the bodies were found wrapped in were similar to blankets she had seen on Kamienski’s boat, that a towel that was found with the bodies resembled one she had seen Kamienski use to polish his boat, and that hitch knots depicted in photos of the recovered bodies that were used to tie the bodies to cement blocks were the same type of knots that Kamienski usually tied.

Based on all of this evidence, a jury found Kamienski guilty of first degree murder as an accomplice and felony murder.  The prosecutor conceded on argument that he did not think Kamienski knew that the DeTournay’s were going to get murdered by Alongi and Marsieno, but he should be found guilty of murder because he put together the drug deal that resulted in the murder and that Kamienski assisted Alongi and Marsieno in getting rid of the bodies.

According to the Antiterrorism and Effective Death Penalty Act, a federal court may grant a writ of habeas corpus on behalf of a person in custody pursuant to a judgment of a State court only if the adjudication in State court resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.  In Jackson v. Virginia, the United States Supreme Court held that every element of a crime has to be established beyond a reasonable doubt for a criminal conviction to be constitutional.   Thus, the issue in the Kamienski case was whether, viewing the evidence in the light most favorable to the state, it was objectively reasonable for the Appellate Division to conclude that a rationale trier of fact could have found, beyond a reasonable doubt, that Kamienski was guilty of felony murder or first-degree murder.

The New Jersey criminal code defines felony murder as a criminal homicide that is “committed when the actor, acting either alone or with one or more other persons, is engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, sexual assault, arson, burglary, kidnapping, carjacking, criminal escape or terrorism…and in the course of such crime or of immediate flight therefrom, any person causes the death of a person other than one of the participants.”  The State argued that all three defendants were guilty of felony murder because the killings occurred in the course of a robbery.  The State could not rely on the drug deal as a predicate felony because it is not one of the predicate felonies listed in the statute.  Thus, to sustain a conviction of felony murder against Kamienski, the State had to prove, beyond a reasonable doubt, that Kamienski knowingly participated or aided in the commission of a robbery. 

The New Jersey criminal code defines first-degree accomplice murder as a criminal homicide where the actor purposely causes death or the actor knowingly causes death.  A person acts “purposely” if “it is his conscious object to engage in conduct of that nature or to cause such a result.”  A person acts “knowingly” if “he is aware that his conduct is of that nature, or that such circumstances exist, or he is aware of a high probability of their existence.  A person acts knowingly with respect to a result of his conduct if he is aware that it is practically certain that his conduct will cause such a result.” 

The New Jersey criminal code also provides that a person is legally accountable for the conduct of another if he is an accomplice to the conduct of another.  A person is an accomplice of another in the commission of a crime if “(1) with the purpose of promoting or facilitating the commission of the offense; he (a) solicits such other person to commit it; (b) aids or agrees or attempts to aid such other person in planning or committing it….”  Finally, the New Jersey Supreme Court has instructed that “for both the accomplice and his partner to be guilty, it is essential that they shared the intent which is the crime’s basic element.”    This, in order for the jury to find Kamienski guilty of murder as an accomplice, the State must show, beyond a reasonable doubt, that Kamienski shared the specific intent to kill the DeTourneys.

According to the Third Circuit Court of Appeals, the government presented more than enough evidence to allow a reasonable juror to find, beyond a reasonable doubt, that Kamienski facilitated a cocaine deal and that he was involved in the disposal of the bodies of the DeTournays.  However, the State did not provide any evidence, either direct or circumstantial, that would allow a reasonable fact finder to determine, beyond a reasonable doubt, that Kamienski knew of Marsieno’s intent to either rob or kill the DeTournays.  Moreover, according to the Court of Appeals, to find that Kamienski shared Marsieno’s intent to rob or kill the DeTournays would constitute rank speculation.  Even under the deferential standards applicable to habeas corpus petitions, rank speculation cannot substitute for proof beyond a reasonable doubt.  The Court of Appeals conceded that proof of a crime can be established through inferences, but there must be some logical and convincing connection between the facts established and the conclusions inferred.

Criminal charges in New Jersey usually have very serious consequences.  Therefore, anyone charged with a crime in New Jersey should contact a New Jersey criminal defense lawyer for assistance.