Category Archives: My Practice
Case dismissed in an elevator
Regardless of what happens over the course of my career, I’ll never forget this case. Really great client hires me for a violation of a restraining order (contempt) charge and a harassment charge out of Newark (Essex County). The case was first in Newark Municipal Court. Somehow, the person who wrote up the complaint, did not realize that Newark Municipal Court does not have jurisdiction to hear a contempt charge. Thus, on the first day of court, I got the case dismissed for lack of jurisdiction.
That victory was short lived as the victim refiled the case properly and the case was scheduled to be heard in Essex County Superior Court. The prosecutor called me and offered me probation if my guy pleas to the contempt charge. Of course, that’s not much of a deal at all but most attorneys would just take that crap. Otherwise, he would not have offered it in the first place.
I explained that the only deal I could accept is a dismissal of the contempt in exchange to a plea to the harassment charge. The purpose of that is to avoid the mandatory 30 days in jail that comes with a second contempt charge. In other words, if my guy plea out to the contempt charge now, I could keep him out of jail. But if picks up another contempt charge at any other time, the best plea offer will be 30 days in jail; and he could face up to 180.
The prosecutor explained that they never give such a deal and that he would have to get special permission to do this which was highly unlikely to be granted. He called me back a few days later and told me that I had the deal.
I should probably back up for a second and tell you about the first real battle in this case. The allegations in this case involve my guy calling his ex-girlfriend on her cell phone and her former employer. So naturally, I want the victim’s cell phone records. Most prosecutors tell me that I am crazy and that they don’t order the phone records in these cases. Again, this goes to show you the high quality representation that is out there, huh? So, I force him to get the records and a few days later I have the deal I just told you about even thought I never actually got the records.
So, we go to court to put the deal through. The judge actually kicks out the deal as she says that what my guy did was actually not harassment which is just amazing. While I agree with her, most judges are not that, uh (gotta be careful here) um, specific?. Anyway, she sets it down for trial a few weeks later which was yesterday.
In between the two dates, I filed a motion in limine which is a fancy way of saying that I am asking the court to exclude evidence. In this case, I was seeking to have all evidence and testimony about my guy’s calling of her employer kept out of the trial since the court had already held that it did not violate any laws.
As I got to court, I met the prosecutor in the elevator. She recognized me from her days as a law clerk in another county. I had a case where I battled the presiding criminal judge for two months who told me that I could not file a motion to suppress on behalf of my client who wasn’t even arrested. Of course you can but I was apparently the only attorney in that county to ever do so. Thus, she knew my reputation and that I was not going to sell out my guy.
In the short elevator ride up to the ninth floor she advised me that she read my motion and I told her that with that testimony excluded her case would collapse becuase even though I still did not have the victim’s cell phone records, I had my client’s records and I knew that the victim’s records would show that my guy is innocent. Thus, she advised that the case would be dismissed so that my motion was moot. Another prosecutor that was with her was shocked that I accomplished all that in a short elevator ride. In fact, she came out of court about a half hour later and again remarked that she was shocked that I got a case dismissed in an elevator.
I kept it a secret from my guy and the look on his face when the prosecutor told the judge that the case was dismissed was just priceless. I thanked the prosecutor for her professionalism because it is unfortunately rare these days. Just another day at the office for me.
Two great trial victories for our firm this month
At my firm, we are trial lawyers. Its a lot of fun but it is also very stressful because we actually care about our clients (unlike some attorneys I know). Thus, if I were to lose a trial, I would be very upset. This month featured two trials for our firm and we got great results for both of them.
The first was my case. My client was charged with possession of a handgun without a permit, possession of hollow nose bullets and resisting arrest. It was a tough case as the resisting arrest charge made it look like he was guilty of the handgun charge. However, I was able to show that the police did literally no investigation. A rookie cop saw a black man with a gun and decided that it was case closed.
I first picked a great jury that was eager to hear the “other side of the story” and I worked that into the theme of my case. My client was well prepped for trial and he did a great job even though he has some learning and memory issues. I was able to break things down for him so he could understand, process and remember key points.
The tough part of the case came from the jury instructions. The way NJ is set up, possession of a handgun is almost a strict liability crime. If you pick up a gun for any reason, even to prevent injury to someone else, you can be found guilty of a crime that will land you in prison for five years regardless of who you are.
In the end, the jury got confused on this issue. My client was acquitted on the bullets and resisting charge and the jury hung on the handgun charge. Now the State’s case got incredibly weaker, I am hopeful that we can work this out and keep a great guy out of prison.
The other case was even tougher. The client was facing major cocaine distribution charges in addition to minor marijuana charges. The marijuana charge wasn’t really at issue as the coke charge was the main focus since that charge would have landed him in prison for decades.
The police allege that our client ditched the coke in the police car after he was arrested. The arresting officer alleges that he checked the car regularly even though there was no policy that directed him to do so. However, a mere three days after this case, such a policy was instituted. Hmm, wonder why that was? Thus, the trial turned on whether or not the jury bought the cop’s story.
In the end, skillful cross examination convinced the jury that the police were full of it when they returned a not-guilty verdict on the cocaine charges after just a few short hours of deliberations.
In the past five years, our firm has tried many cases with almost all of them ending in either a total acquittal, hung jury or an otherwise great verdict. This has added to the firm’s impressive success rate that has been built up over 30 years.
One bad search: Low cost dwi attorney nj
I always like to check my web stats and see how people got to my blogs. However, I was a little concerned today when I saw this search result: “low cost dwi attorney nj”. First of all, I have no idea how that search term pulled up this blog. Second, I am not a low cost anything attorney.
This is just my opinion and I’m not going to beat a dead horse here but I have to at least say it once. Trying to cut costs on attorneys could really lead to very bad results. I know, I see it all the time. I think most people know this but to many people are just so concerned with saving money when it comes to lawyers that they think they can get something for nothing.
If you didn’t already know, lawyers are expensive! But look at it this way, if you had to get surgery that could save your life or improve your health, would you go with a guy in a back alley for $500 or a guy in a nice hospital for $5000? For whatever reason, some people don’t make this connection when it comes to lawyers.
Here is another way to think about it. Look at all of the people that hire decent attorneys. Are they all nuts? If they were able to make the money in the first place, they probably know what they are doing.
Now don’t get me wrong, spending more money doesn’t always equate to great results. I just met with a couple who spent a ton of money on a celebrity attorney that didn’t seem to do much for them. I would have charged them about an 8th of what this guy charged and I could have probably got a better result.
I’ve met with so many people that wasted their money with cheap attorneys. The saying “I wish I would have hired you first” is heard often. But this is not about me or my firm. Its about getting a good attorney and getting what you pay for. If the attorney you meet with is a little more than another attorney, make sure you are getting some value.
Here is another quick example. When I go to a court, I usually have only one file. Other attorneys have 10 and they are running around like crazy. Do you honestly think that the attorney with those 10 files can give the proper attention to all 10 files or is my client better off because he has my complete undivided attention?
New firm website
Check out our new firm website at www.tomsriverattorney.net
I am still ironing out a few bugs on the site so please excuse any errors that may exist.
Should you get an expensive, “big name” attorney?
I really don’t understand some of these “big name” attorneys. You see a lot of them on TV. They don’t really accomplish much but they pay a lot of money to a PR firm to convince everyone that they are these amazing attorneys. As a result, they also charge a ton of money.
Don’t me wrong, I have no problem with an attorney charging what the market will bear. However, I do have a problem with people paying money for just a slick name with no substance. In my opinion, that is just a rip-off.
I had a couple come into my office today to discuss their three sons who are in jail for the same offense. They hired a big name attorney to one son and the other two had public defenders. They were charged with assault but the parents claim that they were all innocent. Apparently, the attorney had a lot of problems with the judge and prosecutor even though both men are great people who have never given me any problems.
This attorney charged them 6 to 8 times what I would have charged them and I am not even close to a cheap attorney. They were actually rather happy with the attorney and mostly blamed the system for the situation. However, when I asked about what was done on the case, it didn’t seem like much was done for all of this money. There were no motions filed when it seemed like at least 5 should have been filed.
There was also no sentencing brief filed which is just crazy. When they left my office, they said what many clients in their position say, “I wish I would have hired you”. Of course, now they have no money for me to put some of the toothpaste back in the tube.
I’ve said it before and I’ll say it again, when you hire an attorney, make sure that he or she has some type of plan. In addition, hire the attorney based your trust with him or her and confidence in their track record and experience. Don’t be fooled by TV appearances and other slick marketing tricks. Some of the best attorneys I know are not flashing their face all over TV and magazines every day.
This blog is totally unbiased
This was on a message board about my coverage of the Higbee trial:
“But Avalon..do we really know this blogger/attny is impartial?..Maybe he has an agenda..maybe he owes something to someone for something..I do get a sense that this prosecution was politically motivated..course I am rather a skepticle type…dont ya know?”
That was rather funny. While I am involved in politics, my criminal defense life comes before all else. I have no agenda and I always give you my honest opinon on whatever I am blogging about.
A cheap attorney may cost you
There is a big market out there for cheap, low-cost criminal defense. I refuse to get into that market. However, it is sometimes difficult for people to understand why one lawyer costs so much more than another one. I’ll try to give you a couple examples.
We just finished a vehicular homicide case and got a great deal for a client that had a lot against him. When his father came to see us, he complained that his attorney was doing nothing. It turns out, he paid his attorney less than what we would charge for a DWI case. As I explained, there is a lot of profit in that next to nothing retainer when you do next to nothing. We charged him about 10 times what he paid the previous attorney. Now that the case is over and he saw the 100+ hours we put into the case, I’m sure he thinks that it was a good investment.
We also had a client that went the opposite way and we just found out what happened with his case. His mother came to see us last year. We charged her a pre-indictment fee that was fair given the amount of work we had to do. He was charged with attempting to stab his wife. However, the wife denied this occurred and was in constant communication with our office. I called the AP on the case and she indicated that she was probably going to downgrade the case back to municipal court. In addition, the client was in the hospital due to mental health issues so he was in no condition to help us. However, the records from his stay there would really help his defense. Thus, this seemed like an easy case.
About a week or so after hiring us, his Mother spoke to another attorney that offered to do the whole case for the same amount we charged for part of the case. Thus, she hired him. Wouldn’t you be concerned with an attorney that would steal a case away from another attorney like that? Anyway, the funny thing about that was that the client wouldn’t have owed us anything if the case worked out like the AP said it would.
We had thought that the other attorney had just used our hard work to wrap up the case. However, this attorney did not take a statement from a wife before the case was presented to the grand jury. Thus, the client was indicted. In addition, at no point did the attorney get his medical records or have him evaluated by an expert to look into his mental state. Instead, the prosecutor threatened him with a big sentence if he didn’t plea guilty so his attorney told him to take the deal even though he claims he is innocent.
So he didn’t save any money, he has a felony conviction and he is likely headed to prison for a crime that both he and his wife claim never happened. So he paid this attorney all of this money for what exactly?
Man gets 13 years for DWI death of 88 year old
While this wasn’t my case, I did work on it as my firm represented the client. It was a tough case as the case was stacked against the client. Nevertheless, we did a great job by getting the plea down. After all, the client killed one person and seriously injured another. Since he already had 18 months in jail, he should get out of prison in about 8 years or less.
This is the type of case where we really don’t make any money because we wind up doing 3 times the amount of work than what we are paid for. However, when it comes to criminal defense, you set a fee and after it is paid, you forget about whether you were paid enough to fight for the client. We turned this case upside down, reviewed 1000’s of pages of documents, filed over a dozen motions and did a ton of research.
In the end, the client thought that it would be best to accept this deal. If he went to trial, he would have had to spend more time in jail to wait for a trial while he was risking a lot more time if convicted. I’m really happy we can get this deal for him.
Story is here.
How to survive probation in New Jersey
I’ve added an articles section to the blog. I like to help people and educate them. When I see a problem, I try to figure out how to fix it. Violating probation in New Jersey is rather easy to avoid but many people each year find themselves in court on a VOP charge. I wrote an article that should eliminate 95% of all VOPs if the suggestions are followed. More articles will follow in the weeks and months ahead. As always, if you have any questions, don’t hesitate to call me.
Charges for threatening cop dismissed
As an attorney, whenever your client is charged with threatening or assaulting a cop, you just know that the case is not going to be easy. The cop may take the case personally and really push to nail your client to the well. While I’ve always has these cases turn out great, I always assume it is going to be really tough.
Today I had a case where my client was alleged to have threatened to punch a cop to the point where my client allegedly put his fist in the cop’s face. Not the best fact pattern. However, I was able to get the case dismissed so my client does not have a criminal record. How did I do it? Simple, my client has nothing to lose by going to trial and I let the State know that I am ready to go to war over a case that to them may be minor, but to my client, is very serious. It was a great result for a great client.
Tonacchio Law LC 