Monday, April 28, 2014

Jail Credits-Department of Corrections Failure to Lodge Detainer for Out-of-Court Sentence for New Jersey Sentence

The New Jersey Department of Corrections routinely decides that all out-of-court sentences that are being served out-of-state must run consecutive unless ordered otherwise by the courts.
Accordingly, when a defendant is release from custody from an out of state sentence the defendant will be brought back to New Jersey to start or continue serving his New Jersey sentence.

However, the law in New Jersey is to the contrary.  In New Jersey it is not the New Jersey Department of Corrections (DOC) that can make that decision but the New Jersey Superior Court which can only determine whether out of state sentence is to run concurrent or consecutive to a New Jersey Sentence.

In a recent case a defendant was released by the Department of Corrections of Pennsylvania and was free for six months.  After six months the defendant was picked up on a warrant in which he was brought back to New Jersey to continue his New Jersey sentence in which he escaped.

The defendant brought a motion to compel the DOC to give him credit for the six months in which he was free because the DOC failed to properly lodge a detainer while the defendant was in custody in Pennsylvania.  In the alternative the defendant requesting that his entire Pennsylvania sentence run concurrent to his New Jersey sentences.  The Superior Court in Union County ruled that the defendant was entitled to the six months that the defendant was free since New Jersey filed to properly lodge the detainer while the defendant was in custody in Pennsylvania.

The controlling case with his issue is Breeden v. New Jersey Department of Corrections, 132 N.J. 457 (1993), which held that issues of comity between states as to whether sentences should run concurrent or consecutive must be decided by the original New Jersey sentencing court.  Breeden v. New Jersey, 132 N.J. at 459.  Further, the time limits set forth in R. 3:21-10 do not apply for the relief the Defendant seeks. Breeden v. New Jersey, 132 N.J. at 470; See, Pressler & Verniero, 2014 N.J. Court Rules, Comment 3:21-10(2.5).  As the court in Breeden held under no circumstances shall the New Jersey Department of Corrections (“DOC”) decide whether a sentence is concurrent or consecutive. Breeden v. New Jersey, 132 N.J. at 469

The defendant argued in his motion that the defendant is entitled to jail credit for the time served under the Pennsylvania sentence under the general principals of comity.  Further, the sentence in Pennsylvania served the penal interest of New Jersey.

In Clark v. Floyd, 80 F.3d 371 (9th Cir. 1996), the Ninth Circuit Court of Appeals held on an appeal from a denial of the defendant’s writ of habeas corpus that the defendant was entitled to jail credit from the time that the defendant was at
large after being erroneously released by state officials after his completion of his sentence.  This rational has been followed in the Third Circuit in Vega v. United States, 493 F.3d 310 (3rd. Cir. 2006). 

Tip of the Day:  In the plea agreement write, concurrent and coterminous.  Coterminous is defined as "coextensive in time or meaning."  Black's Law Dictionary 374 (8th Ed. 2004).  Sentences that have been ordered to be served coterminously have been understood to "coterminate" or end at the same time as the previously imposed sentence.  See Joiner v. State, 625 So.2d 1173 (Ala. Crim. App. 1993)

Law Office of Vincent J. Sanzone, Jr., Esq.
Office No. (908) 354-7006
Cell No.  (201) 240-5716

277 North Broad Street
P.O. Box 261
Elizabeth, (Union County) N.J. 07207

Wednesday, April 23, 2014

Appellate Court Reverses Child Sexual Assault Conviction When Trial Court Fails to Properly Question Child As To Whether She Understood the Difference between a Truth And a Lie

The Appellate Division on April 22, 2014, in an unpublished opinion, State v. Bueso, reverses a Union County jury verdict find the defendant guilty of first degree sexual assault.

In this case the trial judge inadequately questioned the seven-year old alleged victim when he asked her whether she knew the difference between a round book and a square book.  Specifically, the trial judge showed the alleged victim a book and told her that it was round.  He than asked her if that was true, and she said that it was a lie.  That limited inquiry satisfied the judge that she knew the difference between a truth and a lie.

At the beginning of the alleged victim’s testimony the prosecutor was allowed to ask a series rehearsed leading questions which attempted to show that the alleged victim understood that her testimony had to be truthful.

However, the appellate division in reversing the conviction held that such a limited inquiry only ascertained whether the alleged victim knew the geometry, and was insufficient to determine whether the alleged victim understood her moral duty to tell the truth during the court proceedings.

Even though there was no objection by defense counsel to this inquiry, the plain error standard applied (State v. Bunch, 180 N.J. 534, 541 (2004), nevertheless the error was of such a consequences as having the clear capacity to produce an unjust verdict, and hence, a reversal was required.  The court cited State v. G.C. 188 N.J. 118, 131 (2006), citing that a child witness has to give testimony that he or she understands that there is a special obligation to tell the truth.  Also cited was State v. Zamorsky, 159 N.J. Super. 273, 280 (App. Div. 1978).  In that case the court required that the trial judge must inquire as to whether the child witness understands this special obligation.  In other words, the judge must perform this task with care and not in a pro forma or perfunctory manner.  In other words, the question is not whether the child knows the difference between a truth and a lie, but rather does he or she known that during his or her testimony that he or she has the moral responsibility to tell the truth.

Defending someone falsely accused of child abuse or sexual assault is the most challenging and difficult cases to defendant because most jurors believe what they are expected to believe, and often convict out of emotions to protect an alleged victim.  Often the jury’s duty to convict only if the state proves its case beyond a reasonable doubt is ignored by the jury.  Further, jurors often mistakenly believe that child witnesses only tell the truth, and would not make it up.  However, studies have proven over and over again that child witnesses can be very easily manipulated for numerous reasons.  If you are faced with such a serious charge who must retained an experienced New Jersey Criminal Defense Attorney.

By: Vincent J. Sanzone, Jr., Esq.
Elizabeth (Union, Essex, Hudson, Mercer, Bergen, Middlesex County) New Jersey
Elizabeth, New Jersey
(908) 354-7006

Dated: April 23, 2014

Wednesday, April 16, 2014

Arrested on the Beach-Sandy Hook, National Parks, and Gateway National Parks of Sandy Hook, Highlands, New Jersey

Summer is approaching and the ferry service from New York City to Sandy Hook Federal National Park is approaching with thousands of visitors from New York arriving every weekend.

Many visitors, however, are unaware, that this federal beach is patrolled by the National Park Police and that this law enforcement agency has a zero tolerance for inappropriate and illegal conduct.  This is especially true for visitors of Gunnison Beach (“the nude beach”).  Although the park service has permitted this clothing optional beach for decades, going back to when Sandy Hook was a federal army base, the park police will not tolerate public lewd conduct (36 C.R.R. 7.29c), the possession and use of illegal substances such as marijuana and other illegal substances, sexual contact and other disorderly person’s offenses. 

In the event that you have been arrested on this federal national park you will be prosecuted in the Federal District Court, located in Newark, New Jersey.  The attorneys representing the government will be assistant United States Attorneys, who are experienced in prosecuting these types of crimes or disorderly person’s offenses.  If the case is classified as a disorderly person or misdemeanor case it will be heard before the magistrate judge who is assigned part-time to handle all of these cases.

The Law Office of Vincent J. Sanzone, Jr., has 24-years of experience in representing people accused of disorderly persons offenses and federal misdemeanor offense in this federal park.  In many of those cases Attorney Sanzone has been able to get the cases dismissed outright for lack of evidence, or successfully convinced the assistant United States Attorney to allow the offender to be admitted into the federal diversionary program, in which case the offender, would have no criminal record after successfully completing the program.

These types of cases, especially, the public lewdness cases pursuant to 36 CFR 7.29 are difficult and if arrested for this charge you are urged to contact an experienced attorney in this area of criminal practice. 

Some Sandy Hook Results:

United States v. M.C., Dismissal of lewdness charge.

United States v. S.Z., Charged with Marijuana possession. Order of Dismissal entered after successful completion of Pretrial Diversion Program, under Rule 48(a).

United States vs. V.A. Charged with Lewdness. Order of Dismissal entered after successful completion of Pretrial Diversion Program, under Rule 48(a).

P.O. Box 261
277 North Broad Street
Raymond Building
Elizabeth, N.J. 07207
Office Phone: (908) 354-7006
Cell Phone:   (201) 240-5716

Sandy Hook Lawyers, Sandy Hook NJ Attorneys, New Jersey Sandy Hook Criminal Attorneys