In the wake of the NJ Supreme Court’s holding in State v. Henderson, which was issued last year, the New Jersey Supreme Court has announced rule changes and new jury charges that will go into effect on September 4, 2012, regarding how eyewitness identifications may be used in court.  In State v. Henderson, the Supreme Court mandated that the standards used for evaluating eyewitness identifications must be revised in light of the number of erroneous convictions based on misidentification.

Under the new rules, police would be required to keep a detailed record of what occurred during any identification process, which would have to include the following information: the place of the identification, the dialogue between the witness and the officer, any identification or attempted identification that occurred, statement by the witness of his level of confidence in the identification, information about others with whom the witness spoke at any time regarding the identification, a photograph of any live lineup, a record of the photo lineup array or book used, and the identity of anyone present during the process.  Any record would have to be prepared contemporaneously with the identification, or, if that is not possible, “as soon as practicable and without undue delay.”

The new jury charges with respect to identification would inform jurors that “human memory is not foolproof” and that research has shown that human memory “is not like a video recording that a witness need only replay to remember what happened.”  The new jury charges would also advise jurors that certain factors can render an eyewitness identification less reliable, including the stress the eyewitness was under, the event’s duration, distance, lighting, cross-racial identification, and focus on a weapon.

The State of New Jersey has become a leader in catching court rules and procedures up with science as it relates to eyewitness identification.  Scientific studies have repeatedly shown that memory is very fallible, and that identifications under stressful circumstances are often wrong.  However, juries often give great weight to eyewitness identifications.  Therefore, it is critical that juries be advised as to the dangers of misidentification.

Nace Naumoski – nace@naumoski.com

In State v. Palma, decided by the Appellate Division earlier this week, the Court held that a trial judge cannot automatically sentence a driver to a county jail term in a careless driving case because a pedestrian struck by the careless driver died as a result of the accident.  The Appellate Division remanded the case and ordered the trial court to weigh mitigating and aggravating factors to determine whether jail is appropriate in the case.

On February 22, 2010, defendant Palma struck and dragged a pedestrian while operating her vehicle.  There was no evidence to suggest that Palma was intoxicated or talking on the cell phone, nor was there evidence that she ran a red light, exceeded the speed limit, or fell asleep while driving.  Nevertheless, she pleaded guilty to careless driving for failing to yield to a pedestrian.  A municipal court judge sentenced her to 15 days county jail without permitting Palma to present mitigating evidence.  The municipal court judge also considered factors that were inappropriate, such as accounts of the accident found in newspapers and his own review of the discovery.

The Appellate Division held that, before a municipal court judge can impose a jail sentence for a traffic violation, he must weigh the mitigating factors stated by the New Jersey Supreme Court in State v. Moran, which include the nature of the conduct; the risk of harm; actual harm caused; prior infractions; and the hardship that would result.  In addition, the Court must also apply the mitigating and aggravating factors found in the Criminal Code at N.J.S. 2C:44-1 and 2C:44-2.

This article was written by New Jersey criminal defense lawyer Nace Naumoski.

Nace Naumoski – nace@naumoski.com

On June 25, 2012, the United States Supreme Court ruled on the constitutionality of the controversial Arizona immigration law.  In Arizona v. United States, the Supreme Court struck down three out of four of the key provisions of the Arizona law.  The controversial Arizona law was passed in 2011.  Shortly after it was passed, the United States filed a suit against Arizona seeking to enjoin enforcement of the statute as preempted by federal law.

The Arizona law contained four main provisions.  First, the law made failure to comply with federal alien registration requirements a state misdemeanor.  The Supreme Court held that this provision intrudes on the field of alien registration, which is in the sole purview of the federal government.  The Court determined that this provision would stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.

Second, the law made it a misdemeanor for an unauthorized alien to seek work in Arizona.  The Supreme Court determined that this provision stands as an obstacle to the federal regulatory system.  Federal law imposes criminal penalties on employers who knowingly hire undocumented immigrants; however, federal law only imposes civil penalties on the undocumented immigrants themselves.  Therefore, Congress has already decided that it would be inappropriate to impose criminal penalties on unauthorized employees and a state law to the contrary is an obstacle to the regulatory system Congress chose.

Third, the law authorized local police officers to conduct warrantless arrests of any person “the officer has probable cause to believe…has committed any public offense that makes a person removable from the United States.”  The Supreme Court first noted a fact that many critics of illegal immigrants fail to realize – that it is generally not a crime for a removable alien to remain in the United States.  Federal law instructs when an alien should be arrested during the removal process and under what circumstances the arrest may be accomplished without a warrant.  A state law cannot provide local officers with greater arrest authority than what Congress has given to federal authorities.

Fourth, the law provides that officers who conduct a stop or arrest must make efforts to verify the person’s immigration status with the federal government.  The Supreme Court determined that there was not enough information before the Court for the Court to rule on this issue.  It was unclear to the Court whether the law will require state officers to delay the release of detainees for no reason other than to verify their immigration status.  If that is the case, the provision may not survive constitutional scrutiny.  However, if no delays are caused, there is nothing inappropriate about requiring local officers to determine a detainees immigration status, and report those results to Immigration and Customs Enforcement.

This article was written by New Jersey criminal defense lawyer Nace Naumoski.

Nace Naumoski – nace@naumoski.com

Last October, we reported about a New Jersey case that would be heard by the United States Supreme Court on the issue of whether jailers can perform invasive strip searches on individuals arrested for minor offenses where there is no reasonable suspicion that the individual has any weapons, drugs, or other contraband on their person.  Recently, in the case of Florence v. Board of Chosen Freeholders of the County of Burlington, the United States Supreme Court held that it is not a violation of the Fourth and Fourteenth Amendments to require all inmates entering a jail or prison to be subject to a strip search, even if there is no reasonable suspicion that the person is in possession of weapons, drugs, or other contraband.

The primary consideration in the Supreme Court’s decision was the notion that maintaining safety and order at detention centers requires that correctional officers have substantial discretion in running their institutions.  This was in spite of the fact that the correctional institutions in question in the case could not provide any data to evidence their argument that the invasive strip searches performed without any reasonable suspicion of contraband made the institutions any safer.

The Supreme Court also noted that there are additional reasons for performing visual strip searches that justify their use on inmates who are not suspect of carrying contraband.  These reasons include the need to detect incoming inmates who are potentially carrying diseases, and to catalog any signs of potential gang affiliation as part of the intake process.  Finally, the Supreme Court noted that the seriousness of the offense for which a person was arrested is a poor indicator of whether a person possesses contraband.

This case only serves to justify the advice that your grandmother gave you as a child: always make sure to wear clean underwear.  Law-abiding motorists in New Jersey are often arrested on warrants for minor offenses (ever accidentally miss a court date?) and now there is no doubt that those motorists are fair game for strip searches.

Nace Naumoski – nace@naumoski.com
 

This week, in the companion cases of State v. Gaitan and State v. Goulbourne, the New Jersey State Supreme Court held that the US Supreme Court’s ruling in Padilla v. Kentucky is not retroactive.    In Padilla, the United States Supreme Court held that a criminal defense lawyer renders ineffective assistance of counsel if he does not advise a non-citizen client of the immigration consequences of a guilty plea.  A major effect of Padilla was that many defendants who had already pled guilty prior to Padilla began filing applications for Post-Conviction Relief (“PCR”) asking for their convictions to be overturned, arguing that the criminal defense lawyer who represented them in their case did not advise them of the immigration consequences of their plea and therefore rendered ineffective assistance of counsel.  As a result of this week’s case, the NJ Supreme Court has essentially dashed the hopes of non-citizen defendants filing PCR applications.

The Sixth Amendment of the United States constitution provides, among other things, that a defendant in a criminal matter is entitled to the assistance of legal counsel.  In interpreting that provision, courts have long held that, not only is a defendant entitled to counsel, but that counsel must be effective.  Therefore, any criminal defendant who receives ineffective assistance of counsel has been deprived of his constitutional rights, and is entitled to a reversal of his conviction.   Under the US Supreme Court’s ruling in Padilla, a criminal defense lawyer renders constitutionally deficient counsel if he does not advise his client of potential immigration consequences of a guilty plea.  Various types of criminal convictions, including convictions for “aggravated felonies” and “crimes involving moral turpitude” can result in the deportation of the defendant if the defendant is not a citizen.  This is true even if the defendant is a permanent resident of the United States.

In Gaitan and Goulbourne the New Jersey Supreme Court held that “Padilla represents a new constitutional rule of law that, for Sixth Amendment purposes, is not entitled to retroactive application….”  The Court’s reason was that, prior to Padilla, New Jersey criminal defense lawyers would not have necessarily known or expected that they are constitutionally required to advise non-citizen clients of potential immigration consequences of guilty pleas.  Therefore, although it is clear that lawyers must advise clients of immigration consequences in cases going forward, it is not grounds to reverse convictions based on guilty pleas in the past.

It is critical for non-citizen criminal defendants to seek the counsel of a New Jersey criminal defense lawyer if they are charged with any type of offense in New Jersey.  Offenses that may seem relatively minor may have drastic immigration consequences if not handled properly.  For example, under New Jersey state law, shoplifting is treated as a relatively minor offense when the value of the merchandise taken is less than $200.  However, a shoplifting conviction involving any amount, even a miniscule amount, could be considered a “crime involving moral turpitude,” that would result in deportation.  Therefore, it would be wise for any non-citizen charged with any offense in New Jersey, whether it is in federal, state, or even municipal court, to seek the counsel of an attorney.

Nace Naumoski – nace@naumoski.com

In the ever-expanding battle between freedom and technology, a new issue is making its way through the courts where courts are trying to apply established principles to modern life.  The issue is whether a suspect in a criminal investigation must unlock an encrypted computer so that law enforcement can search the contents of that computer.   Law enforcement argue that forcing a suspect to decrypt a computer is analogous to forcing a suspect to open the door to their house when police have a search warrant.  Defense attorneys, on the other hand, argue that forcing someone to decrypt a computer is ordering them to provide information to police that only exists in their own head, and therefore violates a suspect’s privilege against self-incrimination under the Fifth Amendment.

Last month, a federal district judge sitting in Colorado ruled in the case of United States v. Fricosu that a Colorado woman must decrypt her laptop computer so prosecutors could search the files on the computer and potentially use evidence from the files against the woman.  In his analysis, the judge determined that requiring the defendant to decrypt the computer was necessary to effectuate an existing search warrant.  Moreover, the judge determined that, because the government could show by independent evidence that the computer and its files belonged to the defendant, there was nothing to be added to the government’s case by the defendant decrypting the computer.  Therefore, according to the Court, the information was not testimonial and did not implicate the Fifth Amendment.

On the other hand, the United States Court of Appeals for the Eleventh Circuit sitting in Atlanta held yesterday in In re Grand Jury Subpoena Dated March 25, 2011 that forcing a suspect to decrypt a computer or produce a decrypted version of the files on the computer is testimonial, and therefore does trigger Fifth Amendment protection.   The Court first noted that the crux of the issue is whether the act of production (i.e., the act of decrypting the computer) explicitly or implicitly conveys some statement of fact.  If it does, then it is testimonial.   According to the Court, “the touchstone of whether an act of production is testimonial is whether the government compels the individual to use ‘the contents of his own mind’ to explicitly or implicitly communicate some statement of fact.”   In this case, the Court held that the suspect’s decryption of his computer is testimonial based on two facts: (1) the decryption of the computer was not just a physical act (such as unlocking the door) but that it required the use of the suspect’s mind, and (2) the factual communications associated with the decryption are not foregone conclusions.

The Fifth Amendment to the United States Constitution provides that “no person shall…be compelled in any criminal case to be a witness against himself.”  Clearly, decrypting a computer not only provides the government with access to the contents of the computer, but also provides additional facts to the government from the production itself that could incriminate a suspect.  Hopefully, future courts that deal with this issue, including the United States Supreme Court, will come to the same conclusion as the Eleventh Circuit and hold that decryption of a computer is constitutionally protected by the Fifth Amendment.  Anyone charged with a crime in New Jersey should contact New Jersey criminal defense lawyer Nace Naumoski for representation.

Nace Naumoski – nace@naumoski.com

Dr. Vincent Esposito, a physician and local councilman in Madison, New Jersey, was arrested on February 16, 2012, and is accused of selling prescriptions for OxyContin to individuals that he did not treat or examine.   The arrest came after a search warrant was executed by agents of the DEA and detectives of the NJ Division of Criminal Justice at the doctor’s office.  Law enforcement sources have purportedly been investigating Dr. Esposito for over a year prior to his arrest.  Dr. Esposito has been charged with second-degree distribution of a controlled dangerous substance and conspiracy.  If convicted, he faces up to ten years in prison.

Under N.J.S. 2C:35-5, it is unlawful for any person knowingly or purposely “[t]o manufacture, distribute or dispense, or to possess or have under his control with intent to manufacture, distribute or dispense, a controlled dangerous substance or controlled substance analog.”  The grading of this crime depends on various factors, including the amount of drugs involved and proximity to certain places such as schools or parks.  Under the circumstances of the present case, Dr. Esposito has been charged with second degree distribution of controlled dangerous substances.  Law enforcement are claiming that Dr. Esposito wrote prescriptions to undercover agents and confidential informants without examining them first, and charged $90 per prescription.

One interesting facet of this case is that it does not appear that Dr. Esposito distributed the drugs themselves; rather, Dr. Esposito allegedly distributed prescriptions that allowed the patients to purchase the drugs from pharmacies.  There is case law in New Jersey that holds that possession of a CDS is not an element of distribution; therefore, it is possible for an individual to be found guilty of distributing a CDS without having it in his possession; however, that case involved a defendant who was an accessory to criminal possession of a CDS.  In this case, it appears that Dr. Esposito is not an accessory to possession, because the pharmacy would not be charged with any crime since they are legally in possession of the CDS.  It will be interesting to see if this defense is raised in this case and how the courts will decide the issue.  Another issue is what constitutes an “examination” for purposes of writing a prescription.  Dr. Esposito may have a defense that, even though he did not physically examine the CIs and undercover agents, his questioning alone was sufficient.

Anyone charged with a crime in New Jersey should contact New Jersey criminal defense lawyer Nace Naumoski for representation.

Nace Naumoski – nace@naumoski.com

A few months ago, I wrote about the arguments being heard by the United States Supreme Court in the case of United States v. Jones.  You can read my previous article on the case by clicking here, but to provide a brief synopsis: in that case the government argued that law enforcement officers do not need a search warrant to attach a GPS device to a person’s vehicle and then monitor the movements of that vehicle.  Today, the United States Supreme Court, in a unanimous opinion, held that the installation of a GPS device on a suspect’s vehicle constitutes a search for Fourth Amendment purposes, and therefore it presumptively requires a warrant.

This decision is being touted as one of the most important liberty and privacy cases decided by the Supreme Court over the past several decades.   According to the opinion written by Justice Scalia (joined by four other Justices), “[i]t is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information.  We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.”   In a concurring opinion, Justice Alito (joined by 3 other Justices) did not agree that the warrantless trespass on to the defendant’s property was the key that made the installation of the GPS device and the subsequent monitoring of the vehicle an unconstitutional search.  Rather, Judge Alito reasoned that citizens have an expectation of privacy in their long-term movements because a reasonable person would not anticipate being monitored for extended periods of time.

As technology continues to evolve, the techniques used by law enforcement to monitor citizens will continue to get more and more sophisticated and advanced.  This opinion sends the message that there is a line that law enforcement may not cross.  New issues will certainly arise in the future based on more advanced technology (e.g., the use of a cell phone GPS system to monitor the movements of a suspect without a warrant); however, for the time being, this is a significant victory.  Anyone charged with a crime in New Jersey should contact New Jersey criminal defense lawyer Nace Naumoski for representation.

Nace Naumoski – nace@naumoski.com

A former employee of a Parsippany, NJ mortgage lender pled guilty today in Newark federal court to one count of wire fraud in connection with his participation in a mortgage fraud scheme which purportedly netted him $138,402 in proceeds.  Jorge Abbud of Dover, NJ admitted that he targeted homeowners who had equity in their homes, but were facing foreclosure because they were unable to make regular mortgage payments.  Abbud faces up to a maximum of 20 years in federal prison as a result of the guilty plea.

Abbud purportedly told the homeowners to permit the titles to their homes to be recorded in the names of third-party purchasers, known as “straw buyers,” for a period of one to three years in order to avoid foreclosure while he worked on improving their credit scores and obtaining mortgages with more favorable interest rates on their behalf.  Abbud then recruited the straw buyers, whom he told that they were helping the homeowners keep their homes.  Abbud also reportedly caused the straw buyers to misrepresent their incomes on mortgage applications to purchase the homes.

18 U.S.C. Section 1343 makes it a federal crime for anyone to transmit by means of the wires, any communication in interstate or foreign commerce as part of a scheme to defraud.  Anyone convicted of wire fraud, which by its very terms covers a broad range of conduct, faces up to 20 years in prison and a fine of the greater of $250,000 or twice the gross amount of any pecuniary gain or loss resulting from the offense.  This case is the result of a recent crackdown on mortgage fraud by President Obama’s Financial Fraud Enforcement Task Force, whose stated goal is to “wage an aggressive, coordinated, and proactive effort to investigate and prosecute financial crimes.”

Anyone charged with mortgage fraud or any other financial crime in New Jersey should contact New Jersey criminal defense lawyer Nace Naumoski for representation.

Nace Naumoski – nace@naumoski.com

Investigators from the Office of the Attorney General and the Lyndhurst Police Department conducted an undercover operation to ensnare unregistered home improvement contractors.  As part of the operation, investigators posed as the owners of a home that suffered flood damage after Hurricane Irene.  Investigators responded to advertisements for home improvement services and invited contractors to the house to provide an estimate.  Contractors who responded who were not registered with the State were subsequently charged with fourth degree crimes.  If convicted, the contractors face up to 18 months in state prison.

Under N.J.S. 56:8-136, commonly known as the Contractors’ Registration Act, any contractor in New Jersey who advertises their services publicly must register annually with the State.  As part of the registration, the contractor must show that they maintain an office in New Jersey with an actual street address, and must show proof of liability insurance of at least $500,000.  The act further provides that any person who knowingly violates the act is guilty of a fourth degree crime.

As a result of the sting, fourth degree criminal charges were filed by the Bergen County Prosecutor’s Office against eight different contractors from various towns around New Jersey, including Sparta, Kearny, Hackensack, Hasbrouck Heights, North Arlington, Cranford, Wayne, and Annandale.   The State claims that some of these contractors came to the home to provide estimates without even bringing a tape measure.  However, there is no indication of whether a tape measure is necessary to provide an estimate.  In fact, many experienced contractors can tell the rough size of a room without the use of a tape measure.

One thing that should be noted, which has not been noted by law enforcement authorities, is that there is not necessarily any correlation between whether a contractor is registered with the State and whether that contractor provided an honest bid for the job and provides honest services.  The fact that the Contractors’ Registration Act makes it an indictable crime for a contractor to fail to register with the State is proof of nothing more than the over-criminalization of our society.   So, there are potentially honest contractors, who do honest work and provide honest bids, now facing criminal charges for the mere act of not registering.

Anyone charged with a crime in New Jersey should contact New Jersey criminal defense lawyer Nace Naumoski for representation.

Nace Naumoski – nace@naumoski.com