In this case, defendant Quadir Whitaker and Greg Davis spotted Seth Hernandez while drunk on a street in Freehold, New Jersey.  Davis started walking after Hernandez with defendant Whitaker following a short distance behind.  When Davis reached Hernandez, he tapped him on the shoulder intending to rob Hernandez.  Hernandez turned around and took a swing at Davis, at which time Davis pulled out a nine millimeter handgun and shot Hernandez.  Defendant and Davis then fled from the scene to a friend’s house.  While fleeing from the scene, a witness heard defendant say to Davis  “yo, you got to put it up,” meaning that Davis had to discard the murder weapon.   Defendant said in a statement that he did not know that Davis intended to either rob or kill Hernandez.

The prosecutor argued during summation that defendant’s statement while fleeing the scene was a direction to Davis to discard the murder weapon.  The prosecutor then argued to the jury that the statement could be used by the jury as evidence that defendant knew about the plan to rob Hernandez from the very beginning.  Alternatively, the prosecutor told the jury that they could also find defendant guilty of robbery and felony murder even if defendant did not share Davis’s purpose to rob Hernandez or participate in the shooting so long as he aided Davis in discarding the gun.  Based on the prosecutor’s argument, the jury convicted defendant of both robbery and felony murder.  The Appellate Division reversed the conviction and the New Jersey  Supreme Court agreed with the Appellate Division that the trial court had committed error by not properly instructing the jury.

Under the New Jersey Criminal Code, an accomplice is legally responsible for the conduct of a person who actually commits the criminal act, so long as the accomplice acts with a purposeful state of mind in furtherance of the crime.  However, an accomplice is only guilty of the same crime as the principal actor if the accomplice had the same state of mind as the principal actor because a defendant’s state of mind is an essential element to most crimes.  If the accomplice does not have the requisite state of mind for a particular crime, then the accomplice cannot be found guilty of that crime. 

The crimes of “theft” or “robbery,” are “specific intent” crimes in New Jersey.  This means that in order for a person to be found guilty of “theft” or “robbery,” he must act with the specific intent to steal.  Thus, in this case, defendant Whitaker could only be an accomplice to the robbery committed by Davis if he shared Davis’s specific intent to rob Hernandez, that is, if defendant had the purpose of promoting or facilitating the robbery.  In order for defendant to be found guilty of felony murder as an accomplice, he would also have to know that Davis was armed prior to Davis committing the robbery.  

In this case, defendant could only be found guilty of robbery and felony-murder as an accomplice, if he intended to promote or facility the robbery before or at the time that Davis committed the robbery and murder.   Under the New Jersey Criminal Code, there is no accomplice liability for assisting in the flight of a robber when the defendant does not share the same criminal intent as his confederate.   Accordingly, the Supreme Court determined that the trial court had erred in not properly instructing the jury and remanded the matter back to the trial court for a new trial.

As this case illustrates, it is particularly important for a New Jersey criminal defense lawyer to make sure that the trial court appropriately instructs the jury on the law.  A mistake in the instruction of the jury can have disastrous consequences.  Therefore, anyone charged with a crime in New Jersey should contact a New Jersey criminal defense lawyer for assistance.

The Appellate Division first noted that the right to a speedy trial is guaranteed by the Sixth Amendment of the United States constitution.  The United States Supreme Court has announced a four-part test to determine when a delay in bringing a matter to trial infringes upon a defendant’s right to a speedy trial.  The four factors for courts to consider are: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his right to a speedy trial; and (4) prejudice to the defendant.   None of these factors weighs any heavier than the other factors, but rather, the factors are examined and balanced as a whole.

With respect to the first factor, the Appellate Division noted that the delay of almost one year in this case was five months longer than the 60-day period in which DWI prosecutions are supposed to be disposed.  The Appellate Division also noted that the delays in this case were numerous, mostly avoidable, and largely unexplained.   With respect to the second factor, the Court noted that the delays were not intended to hamper the defense; however, all of the delays were caused by the State’s inability to proceed and failure to secure its own witnesses.  With respect to the third prong, counsel for defendant timely asserted his client’s right to a speedy trial by writing to the court to complain directly about the State’s repeated adjournment requests.  With respect to the final factor, the court held that while the delay did not prejudice the defendant’s ability to defend on the merits; however, it did cause the defendant a significant drain in finances by incurring unnecessary counsel and expert fees, and also caused the defendant significant anxiety for an extended period of time.  Accordingly, the Appellate Division held that all four factors warranted a reversal in defendant’s conviction for DWI.

In any DWI case, it is important for a New Jersey DWI lawyer to diligently pursue discovery on behalf of his client and to assert his client’s rights when appropriate.  Counsel’s diligence often opens up opportunities for a favorable result for a client charged with DWI or any other municipal or criminal offense in New Jersey.  Therefore, anyone charged with DWI in New Jersey should contact a New Jersey DWI lawyer for assistance.

In the seminal case of State v. Chun, the Supreme Court held that any DWI suspect who was being administered an Alcotest to determine his level of intoxication had to be observed for twenty minutes prior to the test to insure that he did not ingest or regurgitate anything.  The reason for this is because alcohol present in the mouth either by the suspect ingesting or regurgitating something could skew the results of the Alcotest and render them unreliable.  Many Municipal courts had determined that the officer that administers the Alcotest to the suspect must be the same officer that observes the defendant.  Several Superior Courts had upheld this view.  The logic behind this view is that only an officer that is trained in administering the Alcotest would know what to look for during the observation period that might render the results of the test unreliable.

In the present case, defendant was pulled over on the Hamburg Turnpike in Riverdale, New Jersey for speeding.  The officer smelled alcohol and defendant admitted that he had consumed alcohol that night.  When defendant was brought to the police station, the arresting officer observed him for twenty minutes, and then another officer administered the Alcotest.  During trial, the State stipulated that it would have only called the arresting officer to testify that defendant had been observed for twenty minutes.   The arresting officer was not trained to administer the Alcotest.  The defendant entered a conditional plea of guilty reserving the right to challenge whether the twenty minute observation period has to be performed by the officer administering the Alcotest, or could be performed by any officer. 

The Appellate Division first recognized that the defendant’s position that only the operator can observe the test subject for the twenty minute period is supported by the language of the Court’s opinion in State v. Chun.  However, the Appellate Division held that a literal application of the language used in Chun would create an unduly and unintended restriction on the State’s ability to prosecute DWI cases based on the results of an Alcotest.  According to the Appellate Division, construing the twenty-minute requirement as bestowing upon the operator of the Alcotest the sole responsibility of monitoring the test subject would elevate form over substance.  Accordingly, the Appellate Division panel decided to ignore the plain words used by the Supreme Court in the Chun opinion, and to substitute its own judgment in holding that it is permissible for any witness to observe the test subject, not just the Alcotest operator.

As this case makes clear, contentious legal issues often arise in the context of prosecutions for DWI in New Jersey.  Therefore, anyone charged with drunk driving in New Jersey should contact a New Jersey DWI lawyer for an analysis of the factual and legal issues that may be raised in the case.  DWI charges carry serious consequences, and defendants charged with DWI should take advantage of the assistance that a New Jersey DWI lawyer may be able to provide.

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.