Category Archives: News
Court holds Defendant needed more time to decide if he should tesitfy
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RAYMOND R. MARTIN,
Defendant-Appellant.
__________________________________
April 29, 2009
Argued March 17, 2009 – Decided
Before Judges Wefing and Yannotti.
On appeal from Superior Court of New
Jersey, Law Division, Somerset County,
No. 05-06-00501-I.
Randy P. Davenport argued the cause for
appellant.
Eric Mark, Assistant Somerset County Prosecutor,
argued the cause for respondent (Wayne J. Forrest,
Prosecutor, attorney; Mr. Mark, on the brief).
PER CURIAM
Tried to a jury, defendant was convicted of three counts of distribution of a controlled dangerous substance, cocaine, N.J.S.A. 2C:35-5(b)(3), and one count of resisting arrest, N.J.S.A. 2C:29-2(a), all crimes of the third degree. The trial court sentenced defendant to three years in prison. Defendant has appealed. After reviewing the record in light of the contentions advanced on appeal, we reverse.
Defendant’s trial was brief. Detective Christopher Shearer of the Somerset County Prosecutor’s Office engaged in three undercover narcotics transactions. The last two transactions took place in the parking lot of Rhythms, a bar and restaurant located in Manville. The final sale was monitored by a number of officers, who were stationed in unmarked vehicles at various nearby points. At the conclusion of that sale, Detective Shearer gave a signal to those officers; he drove off and the remaining officers closed in, identifying themselves as police. Defendant tried to run away but was subdued and arrested after a brief struggle. Detective Shearer identified defendant as the individual who sold narcotics to him and several of the officers involved in arresting defendant also testified.
Defendant raises the following issues for our consideration:
POINT ONE
THE TRIAL COURT DENIED DEFENDANT HIS CONSTITUTIONAL RIGHT TO TESTIFY BY FAILING TO SUFFICIENTLY INQUIRE AS TO WHETHER DEFENDANT HAD KNOWINGLY AND VOLUNTARILY WAIVED HIS RIGHT TO TESTIFY.
POINT TWO
THE TRIAL COURT DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO TESTIFY BY REFUSING TO ALLOW DEFENDANT AN OPPORTUNITY TO CONSULT WITH HIS FAMILY BEFORE DECIDING WHETHER TO WAIVE HIS RIGHT TO TESTIFY.
POINT THREE
DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL DUE TO TRIAL COUNSEL’S FAILURE TO AGAIN REQUEST THAT DEFENDANT BE ALLOWED TO TESTIFY ON HIS OWN BEHALF AFTER THE TRIAL COURT HAD PREVIOUSLY CONCLUDED THAT DEFENDANT WAIVED HIS RIGHT TO TESTIFY.
POINT FOUR
THE ASSISTANT PROSECUTOR COMMITTED PROSECUTORIAL MISCONDUCT REQUIRING REVERSAL OF DEFENDANT’S CONVICTION DUE TO AN EGREGIOUS COMMENT IN THE STATE’S SUMMATION WHEN THE ASSISTANT PROSECUTOR COMMENTED ABOUT THE DEVASTATION THAT CRACK COCAINE HEAPS ON CRACK USERS, THEIR FAMILIES AND THE COMMUNITY. (Not Raised Below)
POINT FIVE
THE JUDGE’S CHARGE ON FLIGHT WAS ERRONEOUS BECAUSE IT DID NOT INFORM THE JURY OF THE DEFENDANT’S EXPLANATION FOR HIS FLIGHT. (Not Raised Below)
POINT SIX
THE TRIAL COURT IMPROPERLY DENIED DEFENDANT’S MOTION FOR A NEW TRIAL AND ERRONEOUSLY CONCLUDED THAT THE STATE HAD PROVEN EACH OF THE CHARGES BEYOND A REASONABLE DOUBT.
POINT SEVEN
THE THREE-YEAR PRISON TERM IMPOSED ON DEFENDANT’S FIRST INDICTABLE OFFENSES SHOCKS THE JUDICIAL CONSCIENCE. DEFENDANT MUST BE RESENTENCED TO A TERM OF PROBATION.
The first three points all revolve around the same incident. It is necessary to set forth in detail the context in which it occurred. The first day of trial was Thursday, October 25, 2007. The jury, which had been selected the previous day, was sworn in, the attorneys gave their opening statements, and the prosecution presented three witnesses. At the end of the day, the trial court advised the jury that it would be handling other matters on Friday and Monday, and thus testimony resumed on Tuesday, October 30. The prosecution presented four witnesses on Tuesday, two of whom were officers involved in arresting defendant. Another of the witnesses was the manager of Rhythms, who testified that defendant had come into the establishment to see about booking a party. After speaking briefly, he left. The manager heard a disturbance outside and saw defendant being arrested.
At approximately 11:00 a.m., after presenting three witnesses, the assistant prosecutor informed the court that he had one additional witness, a police officer, whom he had instructed to come in at 1:30 p.m. He said he had been unable to reach the officer to have him come earlier when the trial moved more quickly than he had anticipated. The trial court agreed to the brief recess and in that period conferred with counsel on the anticipated charge.
The trial resumed at approximately 1:30 p.m. and the final witness for the State, Patrolman William Federico, who had also participated in the arrest, testified. At the conclusion of his testimony, the State rested. Defendant then made a motion to dismiss; after argument, the trial court denied the motion under State v. Reyes, 50 N.J. 454 (1967). Defendant then called Detective Mark Matthews, also of the Somerset County Prosecutor’s Office. At the end of that testimony, defense counsel asked for a brief recess to consult with his client on whether defendant was going to testify. The trial court agreed and recessed for fifteen minutes. When the matter resumed (outside the presence of the jury) it was, according to the transcript, almost 4:00 p.m. Defense counsel said his client wanted to consider overnight whether to testify; the trial court refused that request. Defense counsel inquired whether, if his client elected to testify, he could do so in the morning in light of the time. Again, the trial court refused this request.
The colloquy between the trial court and defense counsel occupies several pages of transcript, with the trial court becoming more exasperated with what it perceived to be defense counsel’s refusal to give a direct answer to the question whether defendant intended to testify. The court reminded defense counsel that it had repeatedly during the trial informed defendant that he would have to come to a decision on whether to testify. The trial court insisted that the decision be made at that juncture and further that defendant testify at that point. When defense counsel persisted that his client could not make an informed decision then but needed to consider it overnight, the trial court concluded that defendant was not testifying. Defense counsel did agree that the court should instruct the jury that it could draw no inference from defendant’s failure to testify. The trial court then called in the jury and dismissed them for the day.
The trial resumed the following day with summations and charge. Defense counsel argued in his summation that defendant was arrested by mistake, stressing the testimony of the Rhythms’ manager that defendant had been there talking about booking a party. After several hours of deliberation, the jury found defendant guilty on all counts.
We recognize that the scheduling and control of trial proceedings rests in the sound discretion of the trial court. We further recognize the deference that an appellate court will generally accord to the discretionary determinations of a trial court. Cosme v. Borough of E. Newark Twp. Comm., 304 N.J. Super. 191 (App. Div. 1997), certif. denied, 156 N.J. 381 (1998). We also recognize and are sympathetic to the heavy pressures under which trial courts labor.
We are satisfied, nonetheless, that the trial court mistakenly exercised its discretion when it insisted at 4:00 p.m. that defendant could not ponder overnight whether to take the stand. We acknowledge that the trial court did, as it stressed during this colloquy, repeatedly advise defendant during the trial that he would have to make that decision. The shifting dynamics of a trial, however, are one of the important factors a defendant must weigh in reaching his decision on this crucial issue. What may have seemed to be the reasonable decision during the first day of trial may not be in light of testimony given during the second day. We note, in addition, that defendant had no prior indictable convictions and thus did not have to fear that the jury would consider him less credible because of a prior criminal record.
Judicial discretion is not unbounded. State v. Madan, 366 N.J. Super. 98, 109 (App. Div. 2004). Judicial discretion must take into account not only applicable legal principles but the particular circumstances of the case. State v. Moretti, 50 N.J. Super. 223, 236 (App. Div. 1958) (citing Hager v. Weber, 7 N.J. 201, 212 (1951)). Further, it must be exercised to achieve a sound objective.
We are unable to perceive what objective the trial court was seeking by persisting in this course, and the trial court did not state its objective, other than its desire to have defendant make his election then. The prosecution did not request that defendant make his decision at that point and voiced no objection to the request for further time. The trial court had already determined earlier in the day that summations and charge would take place the following day. Permitting defendant to return in the morning to announce his decision would thus not delay the trial beyond what had already been anticipated. His testimony, moreover, would have been brief and thus did not pose an unjustifiable risk of delay.
From reading a cold transcript, it would appear that the prosecution had a very strong case. The jury, however, did not come to an immediate decision but deliberated for some period of time. Defense counsel argued in his summation that defendant was only on the scene because he had gone to Rhythms to book a party and that the officers mistook him for someone else. We have reluctantly concluded that the stance taken by the trial court was unreasonable in light of all the circumstances of this case and that it mistakenly exercised its discretion.
Our conclusion in this regard makes moot the remainder of defendant’s arguments. We are compelled to note, however, that remarks about the social devastation of drug trafficking do not belong in a prosecutor’s summation.
Reversed and remanded for further proceedings.
3 arrested for allegedly trying to sell pot to undercover cop
Nicholas F. Monteaperto of New Brunswick, Jason Cable of Somerset, and Earl Bowers of Somerset were arrested in Hackensack, New Jersey while attempting to allegedly distribute two pounds of suspected marijuana to an undercover detective for $13,000.00. How three people can all attempt to sell the same two pounds of pot is unknown.
This was a result of a joint investigation conducted by the Hackensack Police Department and members of the Bergen County Prosecutor’s Office Narcotic Task Force. It was probably going on for a while, but these guys don’t seem like your average dealers. Normally, police make a couple actual buys. To bust them at the first buy makes me think that the police didn’t expect them to sell again.
Story is here.
Court upholds stop and strip search
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
AL-AMIN MEANS,
Defendant-Appellant.
________________________________________________________________
Before Judges Lisa and Alvarez.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 06-06-1761 and 06-08-2541.
Yvonne Smith Segars, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, of counsel and on the brief).
Paula T. Dow, Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant was charged with multiple offenses under two Essex County indictments, No. 06-06-1761 and No. 06-08-2541. After his suppression motion pertaining to No. 06-06-1761 was denied, defendant pled guilty to one count in each of the indictments, namely count seven of No. 06-06-1761, third-degree possession of heroin with intent to distribute within 1000 feet of school property on March 24, 2006, N.J.S.A. 2C:35-7, and count six of No. 06-08-2541, third-degree possession of heroin with intent to distribute on January 17, 2006, N.J.S.A. 2C:35-5a(1) and -5b(3). As recommended in the plea agreement, defendant was sentenced under Indictment No. 06-06-1761 to four years imprisonment with a two-year parole disqualifier, and under No. 06-08-2541 to a concurrent four-year prison term.
The sole issue defendant raises on appeal is that the trial court erred in denying his suppression motion under No. 06-06-1761. More specifically, defendant argues:
THE POLICE VIOLATED THE DEFENDANT’S FEDERAL AND STATE CONSTITUTIONAL RIGHTS: THE STATE FAILED TO PROVE THAT THE WARRANTLESS SEARCH AND SEIZURE COMPLIED WITH THE FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 7 AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION.
A. THE STATE FAILED TO PROVE THAT THE SEIZURE OF THE VEHICLE WAS LAWFUL.
B. THE STATE FAILED TO PROVE THAT THE SEARCH OF THE MOTOR VEHICLE DATABASE AS PART OF A NARCOTICS INVESTIGATION WAS REASONABLE, NOT CAPRICIOUS AND DISCRIMINATORY.
C. THE STATE FAILED TO PROVE THAT THE SEIZURE OF THE DEFENDANT, INCLUDING ORDERING HIM OUT OF THE MOTOR VEHICLE, WAS LAWFUL.
D. THE STATE FAILED TO PROVE THAT THE ARREST AND SUBSEQUENT SEARCH OF THE DEFENDANT WERE LAWFUL.
E. THE STATE FAILED TO PROVE THAT THE STRIP SEARCH OF THE DEFENDANT WAS LAWFUL.
We reject these arguments and affirm.
On the evening of March 24, 2006, eight officers were conducting a narcotics surveillance in a particular area in East Orange. They were looking for an individual expected to receive drugs. All of the officers were in plain clothes and unmarked vehicles, but they wore police badges around their necks and police jackets or vests. At about 6:30 p.m., as it was getting dark, Officer Daniel Francis observed a black Honda Accord with tinted windows circle the block several times. He called dispatch and requested a check on the license plate. He was informed the vehicle was owned by Inger Stevens. The registration was valid, but Stevens’ driver’s license was suspended.
Francis broadcasted the information and proceeded to follow the Honda, intending to stop it. The Honda pulled into the parking lot of a commercial establishment. Francis pulled in behind it, and other police vehicles involved in the investigation also responded.
As officers approached the vehicle on foot, they could see two occupants, a female driver and a male, later identified as defendant, in the front passenger seat. As described by Officer Shawn Clark, both were
looking in a downward manner. [Defendant] looked up continuously I guess to identify where I was located. His hands was [sic] in and about his waist area which also was located around — I observed his hands come from behind him. At that point, he was still just turning towards the other female in the vehicle who was in the driver’s seat, which they was [sic] both at that point just looking down going in about their waist area.
Clark “observed them moving their hands around about their waist area, around the seat of the vehicle.” Defendant’s hands were “around the rear of his back, so I couldn’t really tell exactly if he was going to pull a weapon or anything.” Clark ordered the occupants to show their hands. They did not initially respond but continued acting in the manner he described. After several commands, they complied and raised their hands. He then ordered both occupants out of the vehicle. The female acknowledged that she was Stevens and that she did not have a valid driver’s license in her possession. Both were pat searched for weapons with negative results.
At about the same time, Detective Robert O’Neil shined his flashlight through the front windshield. He observed a plastic bag with a white substance in it on the driver’s seat near the center console. Based upon his training and experience, he believed the object was illegal drugs. He informed other officers of his observation. Stevens and defendant were asked about the suspected drugs. They both disclaimed any knowledge. Both were placed under arrest. They were handcuffed and transported separately to the Essex County Narcotics Task Force headquarters.
Because of the movements of both individuals in the car, their failure to immediately respond to the direction to show their hands, and the seizure from the car of suspected illegal drugs, Stevens and defendant were strip searched before being transported to the Essex County jail. Lieutenant Thomas Kelly was the supervising officer. He authorized the strip search of defendant and signed the appropriate authorization form. The basis for the search was probable cause to believe defendant possessed drugs or weapons and a search incident to arrest.
During the strip search of defendant, a black bag was seen protruding from his buttocks area. It was removed and seized. There was some inconsistency in the testimony of the various officers at the suppression motion as to the precise manner in which the bag was seized by the police. It may have fallen out of defendant’s buttocks area; or defendant might have removed it himself, and Detective Robert O’Neil immediately grabbed it from defendant; or an officer might have removed it directly. All officers agreed, however, that no body cavity search was conducted. The black bag contained four bags of crack cocaine and fifteen glassine envelopes of heroin.
Defendant moved to suppress the evidence found on the front seat of the Honda and that seized from his person as a result of the strip search. He argued that the initial stop was illegal, there was no basis to arrest defendant because the suspected drugs observed in plain view were on the driver’s seat, and that the strip search “which [defendant] submit was more of a body cavity search” was illegal.
Judge Vena, after hearing the testimony of six of the officers who were involved in the incident, including Francis, O’Neil, Clark and Kelly, rejected the arguments. He found the testimony of all of the officers credible. He found that, notwithstanding some inconsistencies about the precise mechanics of the strip search, no body cavity search occurred. His factual findings were substantially as we have described the events. Those findings are well supported by the substantial credible evidence in the record of the suppression hearing, and we accept them. State v. Locurto, 157 N.J. 463, 471 (1999); State v. Johnson, 42 N.J. 146, 162 (1964). We also agree with Judge Vena’s conclusion that, based upon those facts, the State carried its burden of proving the validity of the warrantless search and seizure.
Although the police did not actually stop the Honda, they acted lawfully in approaching the occupants for investigative purposes. Having observed the vehicle with tinted windows circle the block several times, the police acted reasonably in obtaining a look-up on the license plate. Even without any suspicious behavior, a look-up limited to the registration status of the vehicle, the license status of the registered owner, and whether the vehicle has been reported stolen, may be obtained. State v. Donis, 157 N.J. 44, 54-55 (1998). When the look-up reveals that the owner’s license has been suspended, “[t]hat information itself [gives] rise to the reasonable suspicion that the vehicle was driven in violation of the motor vehicle laws and [is] in itself sufficient to justify a stop.” Id. at 58.
The next question is whether the police had the right to require the occupants to get out of the vehicle. Once a motor vehicle has been lawfully detained, the right to require the driver to get out of the vehicle is unrestricted. Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S. Ct. 330, 333, 54 L. Ed. 2d 331, 337 (1977). As to the passenger, under New Jersey jurisprudence, the totality of the circumstances must give rise to specific and articulable facts that would create in an objectively reasonable officer a heightened awareness of danger. State v. Smith, 134 N.J. 599, 618 (1994). The circumstances here included a vehicle with tinted windows circling the block several times, and, when police presence was observed, the occupants acted furtively, as if secreting items on or about their persons, and failed to immediately comply with commands to show their hands. This was a sufficient basis to require the passenger to get out of the vehicle.
Upon the plain view observation of suspected illegal drugs in the car, there was probable cause to arrest both occupants. Although the drugs were on the driver’s seat, they were in close proximity to the passenger’s seat, thus being within the area of control of defendant as he was seated on the passenger’s side. They were in open view. Thus, probable cause that defendant constructively possessed the drugs was established because defendant had “open and free access” to them. State v. Palacio, 111 N.J. 543, 552 (1988).
The strip search of defendant was appropriately conducted because the police had probable cause to believe that he secreted additional drugs (or possibly weapons) under his clothing. Probable cause derived from the seizure of drugs from the car in the immediate area where defendant had been sitting, combined with the circumstances of his presence in a car circling the block several times and, most importantly, the observations of defendant quickly moving his hands under his clothing when he became aware of the police presence and refusing to immediately stop those actions and show his hands when ordered to do so. The police therefore had a reasonable and articulable basis for probable cause that defendant possessed contraband under his clothing.
Defendant was the subject of a custodial arrest for a crime. Because of the particular circumstances giving rise to the reasonable belief that he possessed contraband under his clothing, the strip search was justified incident to the arrest. Even if defendant’s arrest was for an offense other than a crime, the strip search would have been allowed. N.J.S.A. 2A:161A-1b. The search conformed with the requirements of N.J.S.A. 2A:161A-4a. See also State v. Harris, 384 N.J. Super. 29, 48-50 (App. Div.) (noting that totality of circumstances must support reasonable belief that additional drugs would be secreted under the clothing to justify a strip search), certif. denied, 188 N.J. 357 (2006).
Affirmed.
New Brunswick Postal Worker accused of theft by deception
Jennifer James, a New Brunswick postal worker was arrested and charged with possession of stolen property and theft by deception. Police allege that she used a stolen ATM card to make 16 withdrawals and steal $7,500 from another woman’s bank account within the last month. After a New Brunswick resident notified police that money had been taken from her account, they began an investigation. They allege that James had obtained the victim’s card and personal identification number and made withdrawals in New Brunswick and North Brunswick.
There is no indication as to how the card was stolen, but I doubt that it was connected to her job as a postal worker for a number of reasons. For one, identity theft is often a crime of opportunity for people that are not involved in organized crime. In addition, she was not arrested by Federal law enforcement which you would expect if this involved theft of mail.
Story is here.
It goes from bad to worse for man facing charges in alleged assault on police
What started out as a domestic violence charge, ended in numerous charges that could land Michael Colombo in prison for quite some time. Colombo, of Hoboken was just going to be charged with two counts of aggravated assault with a deadly weapon, one count of burglary, and one count of simple assault in an alleged attack on a woman in Teaneck. However, when police attempted to arrest him, they allege that he lunged at them, punching and kicking two officers, as well as striking one in the head with a metal skillet, then biting him in the arm followed by an attempt to take his gun.
He was eventually subdued charged with one count of resisting arrest, one count of possessing a weapon for an unlawful purpose, one count of aggravated assault upon a police officer, one count of aggravated assault with a deadly weapon upon a police officer and one count of attempting to disarm a police officer. That last charge is a second degree offense. Needless to say, he is facing a ton of time here. Oddly enough, his bail is only $15,000 which is really low given the number of charges and the amount of prison time he is potentially facing.
Story is here.
Retired NJ State Trooper allegedly shoots at wife
Toms River police allege that Bruce Figular, a retired NJ State Trooper shot at his wife, but missed. His wife, who fled the home, did not have any injuries. Few details were released about the incident, but there were a few interesting details. One is that it took police at least 90 minutes to go into the house and arrest Figular which suggest some time of stand off and negotiation. After he was arrested, Figular was brought first to the hospital and then to the jail. This suggests he either had physical injuries or mental health issues.
He is charged with aggravated assault which, in this case, is a second degree charge. Attempted murder is not always charged in these shoot and miss cases as it can be difficult to proove that there was an intent to kill. I would also like to know if a restraining order was filed as they almost always are in these cases. If so, he needs a good attorney at the FRO hearing to question the wife to essentially depose her.
Maybe I’m biased, but I think it also helps to have an attorney that knows his (or her) was around family court as well as criminal court. While there is a possibility for his wife to get back on his side, there is just as much of a chance of a divorce. Having one attorney to handle both issues may not only save him a lot of money, but it may make the criminal case much easier to deal with.
As an attorney, my main focus would be on his mental health status at the time of the offense in addition to taking testimony from the wife at the FRO hearing. A good mental health defense and/or intoxication defense could be used to keep him out of prison.
Story is here.
Clifton police allege that trio used Craigslist to set up robbery
Clifton, New Jersey police have arrested three people accused in the robbery and assault of a teenager who responded to an ad for an iPhone on Craigslist. Two juveniles along with Ronnie Dumas, 18, of Morristown are charged with second-degree robbery. Police say that Dumas had posted an ad on Craigslist and arranged to meet the victim on Broad Street on Tuesday night. Dumas then changed the meeting spot at the last minute to School 16 on Grove Street. When the victim got to the school, where the robbers came out of a vehicle and attacked the man. $220 and a Pope John Paul II gold medallion were stolen.
This is a tough case for Dumas, because the juveniles are going to get great deals to flip on Dumas. In New Jersey, juvenile cases are handled much quicker so before Dumas gets indicted, the juveniles will already be finished with their cases. Of course, if the juveniles don’t have good attorneys and/or the State wants to hit the juveniles hard, they may be waived up to adult court. At that point, the juveniles will be sentenced as an adult if convicted.
Story is here.
Barnegat, NJ man faces DWI & Assault charges after crashing into police car
William Ferri of Barnegat allegedly sideswiped a police car and then continued driving. Seconds later, Ferri was pulled over and arrested. The officer, who was sitting in his police car at the time was treated for pain and stiffness in his back and neck in the hospital and later released. In addition to assault by auto and DWI, he was charged with reckless driving, failing to maintain lane of travel, leaving the scene of an accident and failure to report an accident. Ferri was lodged in the Ocean County Jail.
Of course, the assault by auto charge will be the toughest charge for his attorney to deal with as it is a felony offense. However, his age may help him significantly. Story is here.
Tonacchio Law LC 