At the suppression hearing, the officer testified that he was investigating a tip from an anonymous caller that there was a man with a gun at the corner of Plainfield Avenue and West Third Street in Plainfield.  When the officer arrived at the corner, he observed defendant, who matched the description given by the anonymous caller except for the color of the jacket that he was wearing.  Defendant’s jacket was open and he was wearing a long white t-shirt under the jacket.  According to the officer, as the police approached defendant, defendant began to walk away and put his hand towards his waistband.  The officer also testified that he knew defendant from prior arrests and knew defendant to be associated with a violent street gang.

The officer stopped defendant and told him to put his hands on a nearby chain-link fence.  Defendant complied.  The officer then lifted defendant’s t-shirt above his waistband and discovered a bag containing what the officer suspected to be cocaine.  The officer seized the cocaine and arrested the defendant on drug possession and drug distribution charges.  The officer did not find any weapon on the defendant.

When a police officer has a suspicion based on  articulable facts and the inferences drawn from those facts that a person has committed a crime, the officer is permitted to do an investigatory stop.  As part of an investigatory stop, an officer is also permitted conduct a reasonable search for weapons if the officer has reason to believe that he is dealing with an armed and dangerous individual.  However, this search has to be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs or other instruments that can be used to harm the police officer.

First, in determining whether an investigatory stop was justified under the circumstances of this case, the Supreme Court looked at the totality of the circumstances of the stop.  The Court first noted that the defendant partially matched the description provided by the anonymous tip.  The Court combined that with the fact that the officer knew this defendant from prior arrests, knew him to be associated with a violent street gang, and the fact that defendant motioned towards his waistband, and concluded that the officer had a reasonable suspicion based on articulable facts to conduct an investigatory stop.

In Terry v. Ohio, the US Supreme Court case that first recognized the permissibility of an investigatory stop, the Supreme Court limited the search for weapons to a search of the outer clothing of the suspect to discover weapons.  The Court went on to note that no cases have extended the permissibility of an investigatory stop to include a generalized cursory search for weapons.

In the present case, the Court first explained that the investigative method employed during an investigatory search should be the least intrusive means reasonably available to the officer to confirm or dispel his suspicion that the suspect is armed.  This usually takes the form of a pat-down search of a suspect’s outer clothing.  In the present case, a pat-down search would have been sufficient for the officer to determine whether or not the defendant was hiding a weapon in his waistband; however, no pat down search was performed.  This was not a case where the officer felt a bulge in the waistband, but could not determine what the bulge was without lifting the defendant’s shirt.  Essentially, the officer had no reason to lift the defendant’s shirt.

Because the officer’s conduct in this case exceeded the reasonable intrusion permitted during an investigatory stop, the evidence discovered as a result of the search was suppressed.  Anyone charged with a crime in New Jersey should contact a New Jersey criminal defense lawyer for representation.  As this case illustrates, if a police officer’s investigation violates the defendant’s rights under the United States Constitution or the Constitution of the State of New Jersey, evidence seized as a result of that investigation can be suppressed and the case can be won.

The defendant in this case was a suspect in a shooting outside a mall in Michigan that left one person dead.  Defendant was identified by eyewitnesses as being one of the shooters; however, he had fled the scene at the time of the shooting.  Defendant was captured about a year later in Ohio.  Two Michigan detectives traveled to Ohio to interrogate the defendant.  At the beginning of the interrogation, defendant was provided with a form outlining his rights under Miranda, including his right to remain silent and his right to an attorney.  One of the detectives read the form to defendant and asked him to sign the form; however, defendant refused to sign.  The officers then began to interrogate the defendant.

During the interrogation, defendant remained mostly silent and only answered a few questions with short one-word answers.  About two hours and 45 minutes into the interrogation, one of the detectives ask the defendant if he believed in God.   To this, defendant responded, “Yes.”  The detective then asked defendant if he prayed to God.  Again, the defendant responded “Yes.”  Finally, the detective asked, “Do you pray to God to forgive you for shooting that boy down?”  Defendant again answered “Yes.”  Defendant was charged with first degree murder and other related offenses.  Defendant moved to suppress the statement he made to police officers and argued that he had invoked his right to remain silent under Miranda by remaining silent during the interrogation, had not waived that right during the course of the interrogation, and therefore the interrogation was unconstitutional.

In analyzing the legal issue in this case, the Supreme Court first noted that in Miranda, the Court had formulated a warning that must be administered to all suspects before they can be subjected to custodial interrogation.  The suspect must be warned “that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if  he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.”    In the present case, all of the parties agreed that the warning given by the officers prior to interrogating the defendant complied with these requirements.

The defendant in this case argued that he invoked his rights under Miranda by refusing to answer any of the detectives’ questions, and therefore, the interrogation should have ceased prior to the time he made the incriminating statements, rendering those statements inadmissible at trial.   The Supreme Court noted that it has previously ruled that a suspect’s invocation of his right to remain silent or his right to an attorney must be “unambiguous.”   If a suspect makes a statement regarding his desire to remain silent or to have an attorney present that is ambiguous or equivocal, police may continue questioning and are not required to attempt to clarify the defendant’s statements.  The reason for this requirement, is that it results into an objective inquiry, and does not put the burden on police to guess the intent of a suspect who makes an ambiguous statement.  Because the defendant in this case did not unambiguously invoke his rights under Miranda, he did not invoke those rights.

Even if a defendant does not invoke his rights under Miranda, in order to use a statement obtained during an interrogation, the State must show that the defendant’s waiver of his rights under Miranda was knowing and voluntary.  The waiver must be knowing in the sense that the waiver was made with a full awareness of both the nature of the right being waived and the consequences of the decision to waive that right.  The waiver must be voluntary in the sense that it was the product of a free and deliberate choice, rather than intimidation, coercion or deception.  According to the Supreme Court, in order to determine whether or not a suspect knowingly and voluntarily waived his rights under Miranda, a court should look at the totality of the circumstances to determine whether the suspect was made aware of his rights, whether he understood those rights, and in spite of knowing and understanding those rights, made incriminating statements.  If the suspect has been made aware of his rights and understands those rights, but acts in a manner inconsistent with the exercise of those rights, the court can infer that he has knowingly and voluntarily waived those rights.

Based on that analysis, the Supreme Court concluded in this case that the defendant had waived his rights under Miranda through his actions.  Defendant was read his rights under Miranda, therefore, he was aware of those rights.  Defendant was also asked to read one of the Miranda warnings off of the form provided by police aloud to ensure that he could read and understand English, therefore he understood his rights.  Finally, his answering the officer’s question about whether he prayed that God would forgive him for the shooting constituted a waiver, because the defendant could have refused to answer that question if he wanted to assert his rights under Miranda.

As a New Jersey criminal defense lawyer, I tell my clients that they should always assert their right to remain silent and their right to an attorney when they are questioned by police.  This is especially true if the questioning is conducted while the client is in custody.  Police employ a variety of techniques in order to gather information from suspects, including promises of lighter punishments or expressions of sympathy or empathy with the person being questioned; however, in conducting the questioning, the police officer’s only job is to obtain evidence against the person to be used later against the suspect.  Often, cases that would otherwise be very weak for the State are made much stronger as a result of the suspect making incriminating statements to police.  This particular case further illustrates that when asserting his rights, a suspect should unequivocally state to the police: “I am asserting my right to remain silent, I do not want to answer any questions, and I want an attorney.”  A suspect charged with a crime in New Jersey should then contact a New Jersey criminal defense lawyer for representation.

This is a significant victory for the prosecution because it sets the stage for the trial of the other five defendants, who will all be tried separately.  The prosecution considered the case against Godinez as the most difficult, and after securing a conviction in this case, they are confident that they will be able to secure convictions in the cases against the other defendants.  This case was the most difficult for the prosecution because there was no evidence linking this particular defendant to the murder weapons and the lone survivor of the incident could not identify Godinez as being at the scene.

Even though Godinez did not pull the trigger or wield the machete that killed the three students, prosecutors relied on the concept of “vicarious liability” to argue that Godinez was also responsible for the killings.  That theory, which is codified in the New Jersey Criminal Code as N.J.S. 2C:2-6, provides that a person is responsible for the criminal conduct of another person is when: (1) Acting with the kind of culpability that is sufficient for the commission of the offense, he causes an innocent or irresponsible person to engage in such conduct; (2) He is made accountable for the conduct of such other person by the code or by the law defining the offense; (3) He is an accomplice of such other person in the commission of an offense; or (4) He is engaged in a conspiracy with such other person.”  Also, under the statute, “a person is an accomplice of another person in the commission of an offense 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; or (c) Having a legal duty to prevent the commission of the offense, fails to make proper effort so to do.”

The prosecution’s theory in this case was that the killings were part of a group effort to initiate a member into the MS-13 street gang.  The prosecution was able to present evidence at trial that Godinez was a recruiter for the MS-13 gang, and as part of that position he urged other members of the gang to commit these killings.  In addition, Godinez’ DNA was found on a beer bottle retrieved from the scene.  Godinez’ attorney stated that he will appeal the conviction.  Anyone charged with a crime in New Jersey should contact a New Jersey criminal defense lawyer for counsel and representation.

Defendant was charged with various burglaries in New Jersey occurring in several counties.  At trial, defendant was convicted of second-degree burglary in violation of N.J.S.A. 2C:18-2a(1), b(1), second-degree robbery in violation of N.J.S.A. 2C:15-1a, and fourth-degree theft in violation of N.J.S.A. 2C:20-3a.  Defendant was sentenced as a persistent offender on the robbery charge under N.J.S.A. 2C:44-3a to an eighteen year term of imprisonment, and a concurrent ten year term for the burglary charge.  Defendant was also subject to periods of parole ineligibility and parole supervision under the No Early Release Act, N.J.S.A. 2C:43-7.2

Defendant first met with detectives from New Jersey in April 2006.  According to the testimony of the officers, during that meeting, defendant assured the officers that they had found the right person who had committed the various burglaries they were investigating and requested another meeting with one “State’s attorney” to go over all of the cases.  Officers also testified that during a second meeting in May 2006, during which all of the detectives were present along with an assistant prosecutor, defendant asked each of the officers what town they were from, and then described in detail crimes he had committed in that town.  At trial defendant denied making any of these statements.

The trial judge determined that the testimony of the officers was credible.  With respect to the May 2006 meeting, the trial judge determined that the defendant called that meal in order to orchestrate a deal with respect to all of the charges in various counties.  In addition, the trial court found that defendant had waived his rights under Miranda because every time officers tried to read the Miranda warnings to defendant, he interrupted them and told them that he knew his rights.

The Appellate Division first noted that the New Jersey common law privilege against self-incrimination provides greater protection than that accorded under the federal privilege pursuant to Miranda v. Arizona.  Under the law of New Jersey, the prosecution must prove beyond a reasonable doubt that the suspect’s waiver of the privilege against self-incrimination was knowing, intelligent, and voluntary in light of all of the circumstances.

The evidence the State used to meet this high burden in this case provided another ground for exclusion of the statements made by defendant at the May 2006 meeting.  Specifically, under N.J.R.E. 410, “any statement made during plea negotiations…is not admissible in any civil or criminal proceedings against the person who made the plea or statement or who was the subject of the plea negotiations.”  The evidence used by the State and the specific findings of the judge supported the defense’s position that defendant was trying to negotiate a plea during the May 2006 meeting.  Therefore, those statements should not have been admitted.  With respect to the statements made at the April 2006 meeting, the Appellate Division held that there was sufficient credible evidence for the trial judge’s finding that those statements were voluntary and not a product of interrogation, and therefore Miranda did not apply.

This case illustrates the importance of a New Jersey criminal defense lawyer having a good understanding of the Rules of Evidence in order to present a strong defense.  Anyone charged with a crime in New Jersey should contact a New Jersey criminal defense lawyer for representation.

The defendant in this case was charged with knowingly exhibiting or displaying to a law enforcement officer a false motor vehicle insurance identification card in violation of N.J.S. 2C:21-2.3(b), a fourth degree crime; uttering a writing or record knowing that it contains a false statement or information with the purpose to conceal a wrongdoing in violation of N.J.S. 2C:21-4(a), a fourth degree crime; and aggravated assault for purposely, knowingly, or recklessly causing bodily injury to a firefighter in violation of N.J.S. 2C:12-1(b)(5)(b), a third degree crime.  When the jury began deliberating, Morris County sheriff’s officers arrived to arrest the defendant on a violation of probation.  The court advised defendant and defense counsel that the sheriff’s officers would be taking defendant into custody for the violation of probation outside of the presence of the jury.  Defendant was not present in court for the remainder of the trial.  In order to remove any prejudice, the judge told the jury that the defendant had a medical emergency and would be absent from the court room.  The jury returned a guilty verdict on the two fourth degree charges, and a not guilty verdict on the aggravated assault charge.  Defendant was sentenced to 90 days county jail as a condition of a one year probation term.

In analyzing this case, the Supreme Court first noted that a defendant’s right to be present at trial is protected by the Sixth Amendment of the United States Constitution, made applicable to the states through the Fourteenth Amendment, and by Article  I, paragraph 10 of the New Jersey Constitution.  In circumstances that do not involve the confrontation of witnesses or evidence against a defendant, the right to be present is protected by the Due Process Clause of the Fifth and Fourteenth Amendments.  In New Jersey, the right is considered so vital to the proper and fair functioning of the criminal justice system, that it is protected by a specific rule of court.  Rule 3:16(b) specifically provides that “the defendant shall be present at every stage of the trial, including the impaneling of the jury and the return of the verdict and at the imposition of sentence, unless otherwise provided by Rule.”  The rule also provides some limited circumstances under which a defendant can waive his right to be present.  “A waiver may be found either from (a) the defendant’s express written or oral waiver placed on the record, or (b) the defendant’s conduct evidencing a knowing, voluntary, and unjustified absence after (1) the defendant has received actual notice in court or has signed a written acknowledgment of the trial date, or (2) trial has commenced in defendant’s presence.

The Court noted that some form of robust right for a defendant to be present at every stage of a criminal trial has been part of both the New Jersey procedural rules and the federal rules of criminal procedure.  However, the Court noted that in determining what to do when a defendant’s right to be present at trial is violated, historically, the test has been whether the defendant was prejudiced by his absence.  When an absence affects a defendant’s confrontation rights, prejudice can be readily assessed; however, when the defendant’s confrontation rights are not at issue, the prejudicial effect on the defendant of his absence at trial has to be examined more critically.   However, no other case has involved facts similar to those in this case, where a defendant is involuntarily hauled off from the trial by the law enforcement officials of another county.

According to the Court, Rule 3:16(b), because it specifically provides a defendant with the right to be present when the jury deliberates and renders its verdict, makes what happened at the defendant’s trial in this particular case untenable.  In reaching the conclusion that what happened in this case was neither just, nor fair, the Court went on to state that “we cannot tolerate a law enforcement agency’s removal of defendant from his trial courtroom, thereby forcibly preventing him from being able to confront the returning jury, with its verdict, by his presence.”  The Court held that because there was nothing on the record indicating that defendant’s removal from the trial court room was voluntary, the conviction must be reversed.

For purposes of completeness, the Court also held that it was improper for the prosecutor at trial to ask defendant questions on cross-examination that required the defendant to comment directly on the credibility of a prosecution witness.  The prosecutor asked the defendant several times on cross-examination, “so, [the firefighter] is either mistaken or lying about what he testified to?”  The Court noted that credibility is an issue within the jury’s ken and with which the jury does not need any assistance.  Therefore, it is inappropriate to ask the defendant to comment directly on the credibility of the State’s witnesses.  Anyone charged with a crime in New Jersey should contact a New Jersey criminal defense lawyer for representation in order to analyze any weaknesses in the State’s case, the strength of potential defenses, and to point out any mistakes made by the State in the prosecution of the case.

In this case, when defendant was confronted by the police officer, he told the officer that his name was “Germaine Handy” (which he spelled for the officer), and that his date of birth was March 18, 1974.  The officer then called in the name to his dispatcher, and the dispatcher advised the officer that there was an outstanding warrant for the defendant.  The officer then arrested defendant, and during a search of the defendant’s person incident to the arrest, he discovered marijuana and crack cocaine.  While defendant was being transported to headquarters, the dispatcher informed the officer that there was a discrepancy in the warrant, in that it listed the individual’s date of birth as March 14, 1972.

The officer later discovered another discrepancy that was not reported by the dispatcher – the spelling of the name of the person on the warrant was “Jermaine O. Handy.”  During the suppression hearing, the State did not offer any evidence that the defendant in this matter was the same person who was listed on the warrant.  The motion judge who heard the motion to suppress held that the dispatcher’s behavior was unreasonable; however, the judge did not suppress the evidence because the arresting officer’s actions in arresting and searching the defendant were reasonable in light of the information that was provided to him.

In analyzing the legal issues raised in this case, the Appellate Division first noted that New Jersey, unlike the federal courts, does not recognize a “good faith” exception to the exclusionary rule.  The exclusionary rule provides that evidence seized in violation of a defendant’s constitutional right to be free from unreasonable searches and seizures cannot be used by prosecutors at trial.  However, even in New Jersey, evidence seized by police pursuant to a defective warrant will not be excluded if police acted in an objectively reasonable manner based on the facts known to the officer at the time of the search.

The Appellate Division then noted that the United States Supreme Court has examined, on two prior occasions, the issue of whether the exclusionary rule applies when someone other than the arresting officer acted unreasonably.  In Arizona v. Evans, the exclusionary rule was held not to apply where a court clerk failed to update the computer system to reflect that the warrant issued for the defendant had been quashed.  In Herring v. United States, the Supreme Court held that the exclusionary rule did not apply where a warrant clerk, who was a law enforcement employee, failed to update the database to reflect that the warrant had been recalled.

The Appellate Division distinguished the facts of this case by noting that this case did not involve a past clerical error; rather, this case involved a dispatcher’s failure to report significant discrepancies to the officer between the warrant and the information provided by the defendant at the time of his arrest.  Had these discrepancies been reported to the officer, the officer would have attempted to verify whether the warrant was for this defendant prior to, rather than after his arrest.  Because the officer would not have been able to verify the warrant, the arrest and subsequent search would never have taken place.

The Appellate Division noted that one of the most significant rationales behind the exclusionary rule is to deter police from conducting unreasonable searches and seizure.  Based on the facts of this case, where a dispatcher completely failed to report significant discrepancies between the warrant and the information provided by the arrestee, there is significant deterrent value in applying the exclusionary rule in order to ensure that in future cases, dispatchers will take greater care in providing officers with correct information.

This case illustrates that there are often significant defenses that can be raised in a criminal matter that may result in charges being dropped or a conviction being reversed.  Both the United States Constitution and the Constitution of New Jersey provide protection to citizens from unreasonable and illegal searches and seizure; therefore any criminal defendant in New Jersey should consult with a New Jersey criminal defense lawyer on the applicability of defenses such as the exclusionary rule.

In this case, the defendant’s wife contacted pastor Glenford Brown and told him that her daughters had told her that their father was sexually abusing them.  The pastor contacted defendant to discuss the allegations.  The defendant was not a member of the pastor’s congregation; however, his wife and two daughters were members.  Pastor Brown met with defendant in a public park behind the pastor’s house, and spoke in private with no one else present.  During the conversation, defendant did not admit the allegations directly; however, he asked the pastor to “help” and “counsel” him.  When the pastor refused to help defendant directly and offered to contact organizations that could help defendant, the defendant refused “because he thought [pastor Brown] would have to explain” to others what defendant had done, and then he would “end up in jail.”   During the conversation, defendant also asked the pastor to baptize him, but the pastor refused.

Defendant was indicted on four counts of first-degree aggravated sexual assault in violation of N.J.S. 2C:14-2, three counts of second-degree sexual assault in violation of N.J.S. 2C:14-2, two counts of third-degree aggravated criminal sexual contact in violation of N.J.S. 2C:14-3, one count of fourth-degree criminal sexual contact in violation of N.J.S. 2C:14-3, and two counts of second-degree endangering the welfare of a child in violation of N.J.S. 2C:24-4.  The State wanted to use the statements made by defendant to the pastor as evidence against him during the trial of the matter.  A pre-trial evidentiary hearing was held and the trial court determined that the statements made by defendant to the pastor were privileged under the cleric-penitent privilege.  The State appealed and the Appellate Division reversed and held that the statements were not privileged.  The defendant appealed to the New Jersey Supreme Court, which held that the statements were privileged.

In coming to the conclusion that the statements were privileged, the New Jersey Supreme Court first traced the history of the privilege to the Catholic seal of confession.  Under the Code of Canon Law of the Roman Catholic Church, it was a crime for a priest to break the seal of confession by revealing confidential information, punishable by excommunication.  New Jersey first recognized the privilege in 1947, when it enacted a statute protecting confessions that would be protected under the laws and practices of the religious body.  The privilege as a secular statutory matter was rooted in the need for confidence and trust between a cleric and a penitent and the underlying public interest in fostering that relationship.

After undergoing several revisions, the current version of the cleric-penitent privilege was codified as New Jersey Rule of Evidence 511 and N.J.S. 2A:84A-23, which provides: “Any communication made in confidence to a cleric in the cleric’s professional character, or as a spiritual advisor in the course of the discipline or practice of the religious body to which the cleric belongs or of the religion which the cleric professes, shall be privileged. Privileged communications shall include confessions and other communications made in confidence between and among the cleric and individuals, couples, families or groups in the exercise of the cleric’s professional or spiritual counseling role.  As used in this section, ‘cleric’ means a priest, rabbi, minister or other person or practitioner authorized to perform similar functions of any religion.  The privilege accorded to communications under this rule shall belong to both the cleric and the person or persons making the communication and shall be subject to waiver only under the following circumstances: (1) both the person or persons making the communication and the cleric consent to the waiver of the privilege; or (2) the privileged communication pertains to a future criminal act, in which case, the cleric alone may, but is not required to, waive the privilege.”

Thus, the Supreme Court reasoned that there are three basic criteria for excluding a statement under the cleric-penitent privilege: the communication was made (1) in confidence, (2) to a cleric, (3) in the cleric’s professional character or role as a spiritual advisor.  In examining whether these three criteria apply, trial courts should use an objective standard, and ask whether, under the totality of the circumstances, a reasonable penitent would believe that a communication was made in confidence to a cleric in that cleric’s professional character or role as a spiritual advisor.  The Supreme Court concluded that, based on the facts in the record in this case, the privilege should apply and the statements made by the defendant to the pastor should be excluded at trial.

This case illustrates that simple concepts can often result in long legal battles involving multiple levels of our court system.  It is important for a New Jersey criminal defense lawyer to consider all of the facts in a case in order to make reasoned legal arguments, to raise valid and important defenses, and to exclude from evidence damaging statements such as the ones made in this case if those statements are protected by privilege.

Often, the individuals involved in flash mobs are charged with disorderly conduct under N.J.S. 2C:33-2.  Under that statute: “A person is guilty of a petty disorderly persons offense, if with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof he (1) Engages in fighting or threatening, or in violent or tumultuous behavior; or (2) Creates a hazardous or physically dangerous condition by any act which serves no legitimate purpose of the actor.  (b) A person is guilty of a petty disorderly persons offense if, in a public place, and with purpose to offend the sensibilities of a hearer or in reckless disregard of the probability of so doing, he addresses unreasonably loud and offensively coarse or abusive language, given the circumstances of the person present and the setting of the utterance, to any person present.”

Another common charge in cases of flash mobs is a charge for obstructing public passages under N.J.S. 2C:33-7, which provides that:  “a. A person, who, having no legal privilege to do so, purposely or recklessly obstructs any highway or other public passage whether alone or with others, commits a petty disorderly persons offense. ‘Obstructs’ means renders impassable without unreasonable inconvenience or hazard. No person shall be deemed guilty of recklessly obstructing in violation of this subsection solely because of a gathering of persons to hear him speak or otherwise communicate, or solely because of being a member of such a gathering. b. A person in a gathering commits a petty disorderly persons offense if he refuses to obey a reasonable official request or order to move: (1) To prevent obstruction of a highway or other public passage; or (2) To maintain public safety by dispersing those gathered in dangerous proximity to a fire or other hazard.”  Also common are charges under local municipal loitering, disorderly conduct, or noise ordinances. 

More recently, in places like Philadelphia and Boston, police have been alleging that these flash mobs have been turning violent.  Therefore, much more serious charges have been levied against participants, such as rioting charges or aggravated assault charges.  In New Jersey, rioting charges under N.J.S. 2C:33-1 can be brought if five or more people engage in a course of disorderly conduct with the purpose to: (1) commit or facilitate the commission of a crime; (2) With purpose to prevent or coerce official action; or (3) When he or any other participant, known to him, uses or plans to use a firearm or other deadly weapon.  Rioting is a fourth degree crime in New Jersey, unless the participants use or plan to use a firearm or other weapon, in which case it is a third degree crime.   These are serious charges that carry prison sentences up to five years.

Anyone charged with offenses related to a flash mob should be aware that they have a constitutional right to be in any public place in this State as long as they are not breaking any laws.  In fact, many municipal loitering ordinances can be challenged on constitutional grounds.  Therefore, anyone charged with any criminal offense or ordinance violation for conduct related to flash mob activity should contact a New Jersey criminal defense lawyer for assistance and representation.  Needless to say, it is very important for anyone charged with more serious criminal offenses related to flash mob activity, such as rioting, assault, or aggravated assault to also contact a New Jersey criminal defense lawyer for representation.

In this case, the defendant was charged with refusing to submit breath samples after being arrested for driving while intoxicated under N.J.S. 39:4-50.2 and N.J.S. 39:4-50.4a.   The defendant in this case was observed by a police officer urinating on a tree while his car was parked in a parking lot, with the engine running and the driver’s side door open.  The officer smelled alcohol on the defendant and asked him to run through a variety of field sobriety tests.

At the police station, the defendant was read his Miranda rights and the standard statement regarding refusal as required by N.J.S. 39:4-50.2e.  In his letter of appearance, defense counsel represented that defendant would move to suppress evidence that was seized unlawfully, without a warrant.  During an evidentiary hearing on whether the arresting officer had probable cause for the arrest, defense counsel raised the issue that defendant did not speak English and therefore did not understand the refusal warning.  Defense counsel did not make a formal motion to address the issue.  At trial, the refusal to submit to a breath test was found to have been knowing, and defendant was convicted of that charge.

The Appellate Division held that proof beyond a reasonable doubt that a suspect arrested for DWI understands the standard refusal statement is not required for a refusal conviction.  According to the Appellate Division, it would be an undue burden on the State to require the State to read the standard refusal statement in every language that a potential DWI suspect might speak.

The Appellate Division also held that there was a procedural bar to the defendant’s argument.  According to the Appellate Division, defendants who seek to exclude evidence on constitutional grounds are required to file a formal motion to suppress the evidence in accordance with Rule 7:5-2.  Further, the defendant must show that there are material facts in dispute in order to be entitled to an evidentiary hearing.

This decision is important because the Appellate Division seems to be indicating that defendants must now file a formal motion whenever they want to move to exclude evidence at trial on constitutional grounds.  This has not been the practice in municipal court, and formal motions to suppress have been reserved for cases involving search and seizure issues.  Based on this decision, a New Jersey DWI lawyer should file a formal motion, on notice to the county prosecutor as required by Rule 7:5-2, in every case where he seeks to exclude evidence on constitutional grounds.

The adult suspects have been charged with possession of controlled dangerous substances without a prescription and possession of controlled dangerous substances with intent to distribute.  Under N.J.S. 2C:35-10(a)(1), it is unlawful for anyone to possess a controlled dangerous substance, unless the substance was obtained pursuant to a valid prescription.  If the suspect is classified as a  Schedule I, II, III or IV controlled dangerous substance, then possession of the substance is a third degree crime.  Most prescription painkillers are Schedule II controlled dangerous substances; therefore, their possession without a prescription exposes the suspect to third degree charges.  A third degree charge carries a prison sentence from three to five years.

Under N.J.S. 2C:35-5(a)(1), it is unlawful for a person to knowingly or purposely manufacture, distribute or dispense a controlled dangerous substance, or to possess a controlled dangerous substance with the intent of manufacturing, distributing, or dispensing the substance.  The degree of the charge depends on the type and quantity of the drug.  Under N.J.S. 2C:35-5(b)(4), the possession of a Schedule II narcotic in an amount of one ounce or more is a second degree crime.  A second degree crime carries a prison sentence from five to ten years with a presumption of imprisonment. 

It appears from the reports of this incident that the police did not have a warrant to enter and search the home where the drugs were discovered.  Under both the federal and New Jersey constitutions, a warrant is required for the search of a home or the seizure of evidence unless there exists an exception to the warrant requirement.  I suspect from the facts of the case, that the police will use the the “community-caretaker” exception to the warrant requirement.  The “community-caretaker” doctrine applies when “the police are engaged in functions, which are totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.”  In other words, when police enter a home not because they are investigating a crime, but because they are trying to ensure the safety and welfare of the citizenry at large, the “community-caretaker” exception to the warrant requirement may apply.

Of course, there are several defenses that can be raised in a case where the police try to assert the “community-caretaker” exception to the warrant requirement.  For example, a defendant can argue that the police were using the “community-caretaker” exception as a pretense to enter the building and conduct a search without probable cause to believe that the building or its occupants contained evidence of a crime.  This argument would be strengthened if the defendants learned that the police were tipped-off by an informant that the building contained drugs, but if the informant was not reliable enough to establish probable cause.  Due to the existence of various arguments a defendant can make in his own defense, it is extremely important for anyone charged with unlawful drug possession or distribution, or any other criminal offense in New Jersey to contact a New Jersey criminal defense lawyer for representation.