Monday, December 30, 2013

Eyewitness Identifications: The Biggest Cause of Wrongful Convictions.

Study after study has proven over and over again that mistaken eyewitness identification is the primary cause of the conviction of innocent people in the United States.  In all most every DNA exoneration case tracked by the Innocence Project at the Cardozo School of Law shows that over 75% of the people eventually exonerated by DNA evidence were convicted at trial by people who testified based on their eyewitness identification.  Eyewitness identification is powerful testimony and unless the jury is advised of the vagaries of such testimony most juries will convict.

Although New Jersey has modified its jury charge on eyewitness identification to alert the jury to certain variables that might affect a witnesses memory, such instructions are not the magic bullet, and these instructions do not completely solve the problem.  Therefore, in defending the eyewitness identification case, the best practices in handling those cases must focus on the new model jury charges as applied to the facts of the particular case.  A jury sitting in these types of cases must be educated that they cannot place too much weight on this type of testimony.

By way of example, in 1975 while attending undergraduate school at the George Washington University I conducted an experiment in a public/speaking criminal justice course.  For my assignment without the professor’s or students prior knowledge I had a fellow student and friend (Jay Swartz), not enrolled in that course, run into the class room  while I was standing in front of my the class giving my presentation with a fake gun and pretend to rob me in front of the professor, and approximately 25 students. (Footnote, experiment obviously could not be done in 2013, since if something like this would happen the school would be in lockdown, and the entire George Washington University would be closed down with the school surrounded by the entire DC police not including every other federal police agency in the city, with Jay and I being arrested for some stupid charge)
Since it was in 1975 and not 2013, after Jay had left with stealing my book bag, and I continued to do my presentation, which including within minutes a survey of the professor and students to see whether they could identify Jay.  Not surprisingly, although Jay ran up to me in well lighted class room, in front of everyone, not one student or professor could give an accurate description of what Jay looked like, what he was wearing.  They by-in large could not remember his height, weight, whether he had facial hair etc.  It is interesting to note, that not one of the real students that were the unexpected observers in the experiment were subject to the stresses of a real crime such as fear, stress, anxiety, visual handicaps such as distance, lighting or obstructed view.  It has been empirically proven over and over again that fear, stress and anxiety does not improve or focus memory since the survival mechanism under such strain is “fight or flight”, which shuts down to a large extent or cognitive memory.  Fearful stimuli causes are brain to go into a flight or fight mode, and is not contusive to forming a clear memory of the incident.  In that experiment many of the students were focused the fake handgun and thus they took little notice of Jay facial features or his other physical description.

Therefore, in any potential eyewitness case the initial description of the assailant may or may not be reliable.  Whether more than one-witness was involved and whether the second alleged suspect was involved are issues which can lead to serious misidentification and a wrongful conviction.  This is particularly true, since a victim, even when mistaken, will normally make a powerful and convincing witness, and most juries will be empathic to the victim’s plight.  This is especially true when the victim/witness uses language such as “I am certain that it is him”, or “I am 100% sure that this is the person that robbed me.”

In summary it is essential that the criminal defense attorney do all that is possible to educate the jury by using as reference the model eyewitness identification instructions in his summations to the jury.  The criminaldefense lawyer must apply the facts of the case (or lack of facts of the case) to those instructions so that the jury will understand that eyewitness’ to a crime might not be as reliable as they seem at first, and that the jury must exercise their legal duty and find the defendant not guilty, if there is reasonable doubt as to the eyewitness identification.    

Even the best cross-examination (“Cousin Vinny”) moments, when the eyewitness is shown to be unreliable through faulty eyesight, or the cooking of grits, is rare in real life criminal trials.

Law Office of Vincent J. Sanzone, Jr.
Elizabeth, N.J.
Tel. No. (908) 354-7006
Dated: December 30, 2013

NJ Criminal lawyers, NJ criminal attorney, NJ criminal lawyer, New Jersey, NJ criminal law attorneys, Hudson County Criminal Defense Attorney, Jersey City Criminal Defense Attorney, Union County Criminal Lawyers, Elizabeth Criminal NJ Lawyers

Quote of the Day:

“To sleep perchance to dream: ay, there’s the rub; For in that sleep of death what dreams may come when we have shuffled off this mortal coil must give us pause ... For who would bear the whips and scorns of time, the oppressor’s wrong ... the pangs of despised love ... the law's delay, The insolence of office and the spurns that patient merit of the unworthy takes, When he himself might his quietus make With a bare bodkin? who would fardels bear, To grunt and sweat under a weary life, But that the dread of something after death, The undiscovered country from whose bourn no traveler returns, puzzles the will and makes us rather bear those ills we have than fly to others that we know not of? Thus conscience does make cowards of us all.”

William Shakespeare  

Saturday, December 28, 2013

The Practice of Criminal Defense; Best Practices in Defending a Criminal Charge in New Jersey

Being a criminal defense attorney is not a profession for the meek, lazy or uninformed.  To become a successful and competent criminal defense attorney in New Jersey requires much skill, dedication and persistent effort.

One of the first things that defense counsel must do when discussing the case with his or her client is to ascertain whether the defendant has an alibi defense, specifically, whether the defendant has credible evidence from a witness or witnesses that the defendant was not at the scene of the crime.   It is essential that these witnesses are located and interviewed as soon as possible while their memory is still fresh, and before they relocate or disappear. 

Recently the New Jersey Supreme Court had an occasion to address this issue in a Post-conviction relief appeal when it was alleged that defense counsel failed to investigate the defendant’s alibi defense, and hence, was convicted of murder when this witness was not called to the stand to testify on behalf of the defendant.  In State v. Porter, our highest court remanded the case back to the trial court and ordered that the defendant be afforded an evidentiary hearing to determine whether defense counsel was ineffective in failing to investigate this alibi witness. 

In all PCR appeals if the defendant makes out a prima facie showing and raises material facts that defense counsel’s actions at trial gave rise to ineffective assistance of counsel, the trial court must then afford the defendant an evidentiary hearing.  At this hearing the defendant would be allowed to call witnesses, and defense counsel, to explain why he or she failed to investigate and call this alibi witness.

If you have been charged with a crime in New Jersey or have been convicted of a crime in which your attorney failed to provide an adequate defense you must seek a consultation with an experienced New Jersey criminal defense attorney, who has handled criminal cases in Union, Essex, Bergen, Hudson, Somerset, Passaic, Morris, Warren, Hunterdon, Ocean, Monmouth, Mercer, Middlesex, Gloucester, Burlington, Camden, Atlantic, Cumberland, Sussex and Salem counties in New Jersey.

By: Vincent J. Sanzone, Jr., Esq.
Dated: December 28, 2013

Law Office of Vincent J. Sanzone, Jr.
Elizabeth, New Jersey
(908) 354-7006

NJ criminal attorneys, NJ criminal lawyers, NJ criminal defense lawyers, NJ criminal defense attorneys, Newark criminal lawyers, Elizabeth nj criminal attorneys, Elizabeth criminal defense lawyers.  Union county nj criminal lawyers. Newark criminal lawyers, Hudson County Criminal Lawyers.

Thursday, December 26, 2013

United States Supreme Court Holds No Canine Sniff of Front Porch without Warrant.

The facts of Florida v. Jardines (2013) are simple and straight forward.  The police in Florida took a drug-sniffing canine to the front porch of the defendant’s home to see whether the dog would make a positive hit for drugs.  The dog did, and based on the that positive hit, the police obtained a search warrant to search the home.  In searching the home pursuant to the warrant the police discovered marijuana plants, and the defendant was charged with trafficking in CDS.

The evidence was suppressed by the lower courts in Florida and affirmed by the Florida Supreme Court.  The United States took certiorari and our highest court agreed that the police had no right to bring the drug-sniffing dog on the defendant’s porch without a warrant.  That any search of a home or its curtilage without a warrant was a violation of the Fourth Amendment to the United States Constitution.  Following Oliver v. United States, 466 U.S. 170, 180 (1984), which held that any area immediately surrounding and associated with the house is part of the home for purposes of Fourth Amendment protection.

If you have been arrested as result of a search of your home, office or motor vehicle without a warrant you must seek competent legal advice from an experienced criminal defense attorney, to see if your fourth amendment rights have been violated and your chances of obtaining a dismissal based on a motion to suppress the evidence illegally seized.

Elizabeth, New Jersey
(908) 354-7006
Criminal Defense Attorney in New Jersey, Union County, Federal Court, Newark, Elizabeth, Jersey City, New Brunswick, Hackensack, Morristown, Somerville, Bayonne, Union City, Clifton, Roselle Park, Clark, Westfield, Union, Short Hills, Milburn.

Dated: December 26, 2013

Quote of the day:  “Each time a man stands up for an ideal, or acts to improve the lot of others, or strikes out against injustice, he sends forth a tiny ripple of hope.” Robert Kennedy

Monday, December 16, 2013

Sentencing in New Jersey for Crimes and Disorderly Person’s Offenses

Elizabeth (Union County) New Jersey
Tel: (908) 354-7006
New Jersey Criminal Defense Attorney

Under New Jersey you can only be convicted of a crime, which is a felony, and must be adjudicated in Superior Court, or a disorderly  person’s offense which is are normally adjudicated in Municipal Court.  

Any sentence which exceeds over six-months is a crime in New Jersey, anything less, is a disorderly person’s offense.  N.J.S.A. 2C:1-4   Disorderly and petty-disorderly offenses are not crimes under the New Jersey Constitution.  Note, unlike most states, New Jersey does not have misdemeanors. 

Upon being convicted of a felony depending on the degree of the offense you will be sentenced as follows:  (1) Crimes of the first degree, 10-20 years in prison, or life depending on the particular offense of prior record; (2) Crimes of the second degree, 5-10 years in prison, or more, depending on the prior record, or offense committed; (3) Crimes of the third degree, 3-5 years in prison, again depending on the crime or prior record; (4) Crimes of the fourth degree are 18-months, but again depending on the crime committed and prior record could be more.  N.J.S.A. 43-1

With Disorderly person’s offenses the maximum  sentence  is six months in prison. N.J.S.A. 2C:1-4.

If you are a registered alien or seeking a green card and you want to remain in the United States you must not be convicted of a felony, or in some cases a disorderly person’s offense, involving crimes of moral turpitude, such as prostitution, or theft offenses, and other disorderly person’s offenses which show lack of good character.  See Immigration Table for Check List of Offenses that May Result in Deportation and/or Inadmissibility to the United States.

Saturday, December 14, 2013

Defending the Intent to Distribute CDS Charge in New Jersey Superior Court

There is a term in Latin, Ipse Dixit, which means, “He, himself, said it.”  In essence describes a statement made by person in so-called authority, which is arbitrary and dogmatic and has no basis in fact or reality other than because the person who said it says so.  In other words the statement is a bare assertion fallacy.

Intent to distribute experts who testify for the prosecution in intent to distribute cases is in essence nothing more than a ipse dixit witness. 

These witnesses give their personal opinion testimony in the form of a hypothetical answer based on a hypothetical question, which is based on the facts of the case.

To begin with they are giving opinions based on nothing more than their personal opinions based on the discovery in the case posed in a hypothetical question.  Of course common sense tells us that no person can say what the intent of someone else is, or predict what someone else will do, i.e., whether they possessed the CDS with intent to distribute or possessed the CDS for personal use.  However, our Supreme Court in New Jersey says that this bare assertion fallacy is permissible in New Jersey.  The courts attempt to get around this ipse dixit logical fallacy by arguing that the average juror is unable to use his or her common sense and hence a police officer must testify that for example two pounds of marijuana was possessed not for personal use but with intent to distribute. 

Why this testimony has no basis in logic or reason is simple.  First, and foremost, it is the State or Government in a federal CDS criminal case, that most prove beyond a reasonable doubt that the person in possession of the CDS possessed it with intent to distribute.  If the State cannot prove it beyond a reasonable doubt with real, valid and convincing evidence, there must be a not guilty verdict and the jury must come back with a verdict of guilt for possession only.  Second, most juries are sophisticated enough to draw the proper inferences based on all the real evidence in the case whether the person possessing that amount of marijuana possessed same for personal use or with intent to distribute. Third, what you [police expert witness] is really saying in this hypothetical example is that it could have been possessed with intent to distribute, not that it was possessed with intent to distribute?

It is unfair to allow the State or Government to supplement their lack of real evidence in these types of possession cases with phony ipse dixit testimony and New Jersey criminal defense attorneys must continue to fight to keep this evidence out and through cross-examination and again in summations argue that this testimony is nothing more than bare assertion fallacy testimony.

P.O. Box 261
277 North Broad Street
Elizabeth (Union County), New Jersey 07207
(908) 354-7006
Dated: December 15, 2013

Monmouth, Essex, Union, Middlesex, Bergen, Hudson, Somerset County Criminal Defense Attorney, NJ Criminal Lawyers, NJ Criminal Defense Lawyers, Attorneys

Challenging Forensic Identification Evidence At Trial: Best Practices to Win Your Criminal Trial and Obtain A Not Guilty Verdict.

Part I  The Use of Bullet Lead Analysis (“CBLA”) Evidence

The claims that forensic expert witnesses make at trial for the prosecution often cannot stand close scrutiny and competent cross-examination by defense counsel.

There is no doubt that this type of testimony is powerfully persuasive to the jury hearing it especially in the age of television shows such as CSI.  Unfortunately, this testimony is not always reliable and such testimony will often lead to a guilty verdict.

There is much evidence to support the proposition that such evidence is often under-researched and often oversold.  The truth is forensic evidence is not infallible.

One such troubling example of junk science forensic evidence was the FBI use of lead alloy evidence or comparative bullet lead analysis (“CBLA”).  For forty-five years FBI forensic bullet alloy experts testified throughout the country claiming that they could match the lead in the bullet or fragments recovered from the defendants unused box of bullets found in his possession.  On September 1, 2005 the FBI admitted that the science was not reliable and discontinued this testimony.  How many innocent people were convicted on such testimony no one will ever know, and I do not thing anybody cares to find out. Like the fallacious CBLA forensic evidence, what other fallacious forensic evidence is still be peddled as the magic bullet for the prosecution?

In addition to junk science forensic testimony, there is also much historical evidence that prosecution expert forensic witnesses intentionally falsified the truth. In some cases they have been caught fudging numbers, exaggerating the truth, or outright lying. 

One continuing trouble problem is the use of the so-called intent to distribute experts, who testify in simple possession cases that the defendant possessed those drugs with the intent to distribute.  What crystal balls do these so called experts have to make these outlandish statements?  Troubling, however, that some juries will accept such testimony as gospel truth and convict on that junk testimony

277 North Broad Street
P.O. Box 261
Elizabeth, N.J. 07207
Telephone: (908) 354-7005
Dated: December 14, 2013

Sunday, December 8, 2013

“Justice” in the Red Bank New Jersey Municipal Court; Is there a double standard in the Red Bank Municipal Court for Police Officers?

On May 14, 2007, Red Bank municipal court judge, William Himelman (case was transferred to Red Bank for possible conflict) found the Wall Township Police Chief, Bernard Sullivan not guilty of driving while intoxicated.  The evidence against the police officer, as testified by the arresting officer, was that the chief was driving recklessly by failing to maintain lane, going through a red light, reckless driving and failing a breathalyzer test, blowing double the legal limit.  Sullivan admitted having four to five beers when stopped, but contested that he failed the field sobriety tests that were administered to him at the scene.

After the verdict the Star Ledger quoted Red Bank Municipal Prosecutor James N. Butler as saying he was shocked by the judge’s decision, and stated, “To me, it set the criminal justice system back a long way, because what it said is, Don't arrest a cop.” 

In the judge’s oral decision he stated, "I didn't see (Sullivan) staggering, I didn't see him falling, I saw him walking around," Himelman said. "What I saw on that surveillance tape was a man who had five beers, not someone who had 10 beers."  However, as this judge knows whether someone can handle their liquor is no defense to a DWI charge, and rarely if ever, will a municipal court judge find a defendant not guilty when he fails the field sobriety tests?  Sullivan’s failure on the field sobriety tests was also witnessed by superior officer Lancellotti who was called to the scene.

Further, the municipal court judge completely ignored the testimony of Patrolman Verrecchia who testified that when he pulled Sullivan over at 12:35 a.m. after he saw Sullivan's car, headed north on 16th Avenue in the West Belmar section of town, run a red light at Route 35, nearly colliding with a car on the highway.  Further, he testified that Sullivan continued across Route 35 and headed up Belmar Boulevard toward his Wall home on the wrong side of the road until Verrecchia pulled him over near Marconi Road, Verrecchia testified.

Further, the municipal court judge completely ignored officer Verrecchia testimony that Sullivan breathalyzer reading was for the first test .19 and for the second test, .20 (double the legal limit for that time).

According to the Asbury Park Press interview of the judge after the verdict, Himelman was not embarrassed to say that it was the first not guilty verdict he has made in the last five years in a DWI case while sitting on the bench in Red Bank. I wonder how many individuals were found guilty in Red Bank by him and how many lost their jobs because of their loss of a driver's license?

This unfortunately is not an isolated incident and further reinforces the need for municipal courts in New Jersey to be consolidated in joint municipal courts in which a number of towns join their municipal courts into a joint municipal court.  Further, that these joint municipal court judges be appointed by the governor as Governor Christi has proposed. Not only will this save taxpayers money, by consolidation, but also eliminate some of the conflict of interest, which is rampant in municipal courts throughout the state.  Specifically, because the municipal court judge receives his or her paycheck from the town in which he must generate revenue, and hence, the inference that he or she must find everyone guilty to generate revenue.  Or as this judge admitted never find anyone not guilty in the last five years in every DWI case, except in one case in which an law enforcement is charged with DWI, notwithstanding all the evidence against the police officer?  Nobody is questioning the integrity of the municipal court judge in this case, however, it surly makes you wonder.  Is there any justice in municipal court in Red Bank?

P.O. Box 261
277 North Broad Street
Elizabeth (Union County), New Jersey 07207
(908) 354-7006

Monmouth, Essex, Union, Middlesex, Bergen, Hudson, Somerset County Criminal Defense Attorney, NJ Criminal Lawyers, NJ Criminal Defense Lawyers

Friday, December 6, 2013

New Jersey Supreme Court Rules that When You Move from Your Home or Apartment Make Sure that You Remove Your Illegal Drugs

Prepared as a Public Service to the People by the Law Office of Vincent J. Sanzone, Jr.

In the recent New Jersey Supreme Court case, State v. Hinton, the court ruled that when a tenant is evicted or moves permanently from their apartment that the tenant no longer has any reasonable expectation of privacy.

In this case Mr. Hinton was legally removed from his apartment based on a warrant of removal.  When the court officer arrived to change the locks and do a safety inspection it was discovered that Mr. Hinton had left his stash of heroin and cash in his bedroom.  Upon discovering this, the court officer notified the local police you entered the apartment without a warrant. 

Although the Appellate Division suppressed the drugs, on the basis that the police violated the defendant’s reasonable expectation of privacy, the Supreme Court reversed holding that the tenant no longer had this privacy right.

Although on its face this case appears to be an innocuous decision limited to the facts; it appears, however, that this case is of concern to the defense bar.  This is the first case in many years which refused to follow the automatic standing rule with all personal property.

Under Governor Christi’s Supreme Court appointment, the court is becoming more conservative and a clear shift in the slow evisceration of the constitutional protections previously afforded defendants in this state.

Quote of the Day: “There are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations.”  President James Madison

Elizabeth (Union County) New Jersey
(908) 354-7006

NJ Criminal Defense Attorney, Newark Criminal Attorneys, Elizabeth Criminal Attorneys, Hudson County Criminal Attorneys, Middlesex County Criminal Lawyers, Ocean and Monmouth Criminal Lawyers.

Tips Strategy and Best Practices in Trying Your Criminal Case In New Jersey

The first thing every New Jersey criminal defense attorney must think about before he presents his case to the Jury is how will he present the defendant’s theory of the case.  This is not a simple question and requires must thought and preparation.

The first thing that the criminal defense attorney must do is known each and every fact of the case.  Also, the attorney must spend a considerable amount of time with the client to understand facts which are not revealed in discovery and only the client knows about.  Remember, the client does not know which facts are important, therefore, you must stress to the client that every fact know to the client, good of bad, must be revealed to the attorney.

It is well settled both in federal and New Jersey state law that the defendant has the absolute right to present his side of the story to the jury, or otherwise known as his theory of the case.  In Washington v. Texas, 388 U.S. 14 (1967), our United States Supreme Court held that under the Sixth Amendment to the United States constitution, the defendant has the sixth amendment right to compulsory process to have witnesses testify on the defendant’s behalf.  See also, Davis v. Alaska, 415 U.S. 308 (1974). Further, the defense has the right to present a meaningful defense. Holmes v. S.C., 126 S.CT. 1727 (2006)  The right of the defense to present its theory of the case is so strong, even to the point of allowing the defense the opportunity to present hearsay, i.e., declaration against interests, “I killed the cop”, Chambers v. Mississippi, 410 U.S. 284 (1973)

The Defendant is denied a fair trial if he cannot present his theory of the case.

In essence there are basically three types of defenses.

1.   She did not do it.

2.   She did it but government cannot prove it.

3.   She did something but what she did is not a crime.

In assessing the Government’s or State case the question must be asked.  What is the Government Ignoring?

Points to Remember:

1.   What has the government neglected?

2.   What has the government ignored?

3.   What has the government refuse to recognize?

4.   Which are also known as negative evidence and an acceptable means of disproving a criminal case?

5.   Negative evidence is important.

Accordingly the defendant has the absolute right to present our defense, and the Government cannot prevent or tell us how to proceed.  Cast shadows on innocence’s. 

6.   If the Government attempts to prove intent by circumstantial evidence, why isn’t the defense entitled to show that circumstantial evidence which does not show intent?

7.   Absence of evidence when it should be there.

8.   Deconstructing evidence what the government wants to show-prove.

9.   What are they not saying?

10.  What are they ignoring?

11.  What is lacking?

12.  Idea of deconstruction. 

13.  Put it into proper form for the jury to understand.

14.  Use demonstrative evidence to show the negative evidence.

15.  What about the government’s theory doesn’t make sense?

16.  Have they used any resources to find the truth?

17.  To find this negative evidence?

18.  Evidence that they don’t have, which would prove that he is guilty of the crime?

277 North Broad Street
P.O. Box 261
Elizabeth (Union County), New Jersey 07207
Tel: (908) 354-7006

NJ Criminal Lawyers, NJ Criminal Defense Lawyer, Newark Criminal Lawyers, Elizabeth Criminal Lawyers, NJ Union County Criminal Lawyers

Monday, December 2, 2013

The City of Elizabeth New Jersey and Criminal Law

The City of Elizabeth (Union County)New Jersey according to the 2012 census had a documented population of 126,458 people.  Because of the large population of undocumented and illegal residences the City of Elizabeth population is likely doubled that amount to a population of a quarter-million.

The city is the home of many immigrants from South and Central American countries including the largest being from Columbia.

The City of Elizabeth is has it share of street crimes ranging from homicides, drive-by-shootings, to petty thefts and burglaries. 

Because the City of Elizabeth is known for its high-end and glamorous Latin night clubs the City of Elizabeth attracts young Hispanic men and women from throughout the New Jersey and New York Metropolitan areas.

With this large influx of young party people brings also its share of crimes, which range from assault, date-rape, controlled dangerous substances charges (CDS), sexual assault, DWI, DUI, eluding, fighting, disturbing the peace, resisting arrest, hindering apprehension and other disorderly persons or felonies.

The police in the City of Elizabeth are also known for being aggressive and are known to not deescalate but escalate every encounter.  Further, unlike most major cities off-duty Elizabeth police officers moon-lite in the cities nightclubs, which cause additional problems when an argument ensues between a club bouncer and a patron.  In most cases if the bouncer starts to beat a patron, the off-duty officer will take the bouncers side or simple join in the beating.  Therefore, typically, in the City of Elizabeth, when a fight starts and the police are summoned, be prepared for a resisting arrest, or assault on an officer charge. 

If you have been caught-up in a party night in the City of Elizabeth which has lead to your arrest call the Law Office of Vincent J. Sanzone, Jr., it might be the best decision you make.

Law Office of Vincent J. Sanzone, Jr.
P.O. Box 261
277 North Broad Street
Elizabeth, N.J. 07207
Office:   (908) 354-7006
Cell:     (201) 240-5716 (24/7 emergencies)

Quote of the Day: “There is no crueler tyranny than that which is perpetuated under the shield of law in the name of justice.”  Charles De Montesquieu