Friday, February 27, 2015

Appellate Court Boots Police Officers Arrest for Firearm and Marijuana Offenses when Police Officer Jumped a Fence into the backyard Based on the Smell of Marijuana and Tip that Firearm was Hidden inside the Backyard Dog House.

State v. Peter Samuell, Appellate Division decided February 25, 2015.

In this case Trenton Police Officers jumped a fence of a residential home to investigate the alleged smell of marijuana and tip that a firearm was hidden in the backyard dog house.

When the police surrounded the house the officers requested that the suspect/owner of the house submit through a patdown through his chain link fence.  When the suspect refused the officers jumped the fence, detained the suspect and entered the house to conduct a warrantless search of the house.  In the house were found drug manufacturing equipment, large amount of marijuana and AK-47 machine gun.

The Superior Court trial court denied the defendant’s  upheld the warrantless search holding that the facts alleged were sufficient to establish probable cause for the warrantless search. The Appellate panel reversed the conviction and granted the defendant’s motion to suppress. In this case the prosecutor presented no evidence that an exception from the warrant requirement applied.
At this stage of the investigation there was no probable cause to detain the defendant and enter the home to continue their investigation.  Although the police were justified in jumping over the fence to conduct a Terry search for weapons of the suspect, which under the facts was articulable and reasonable, those same facts did not authorize the police to enter private property to further their investigation. State v. Jefferson, 413 N.J. Super. 344, 354-55 (App. Div. 2010).  As always, in New Jersey
"minimally intrusive" police conduct must occur at a location in which the police are authorized to be (non-private property). State v. Maryland, 167 N.J. 471, 486 (2001)

In this case there was no doubt that the fence around the backyard was intended to keep everyone out, including police officers investigating a crime.  This protected cartilage is part of the home. United States v. Dunn, 480 U.S. 294 (1987).

The court held that although the officers alleged “smell of  marijuana established probable cause to suspect unlawful possession of marijuana by one or more occupants of the house. But the smell of marijuana and the other information the police learned was still not sufficient for a warrantless police entry.”  In Welsh v. Wisconsin, 466 U.S. 740, 750, (1984), the United State Supreme Court held.  "Before agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries

While the alleged smell of marijuana provided probable cause, it did not establish exigent circumstances for a warrantless entry. Johnson v. United States, 333 U.S. 10, 12, (1948).  In that case an informant told police of persons smoking opium in a hotel room, which the court held was insufficient to enter the room without a warrant.

Again, State v. Holland, 328 N.J. Super. 1 (App. Div. 2000), rev d on other grounds, 176 N.J. 344 (2003), the court held that the alleged smell of burning marijuana may establish probable cause but not exigent circumstances to make a warrantless entry and to search when it shows nothing more than probable cause that a disorderly persons offense might have been or being committed.  Lastly, the court found no exigent circumstances as to why a warrant could not be obtained when the police had no evidence that a crime was being committed other than a disorderly person’s offense. State v. Holland, 328 N.J. Super. at 10-11; see also Welsh, 466 U.S. at 753-54.

It appears again that the New Jersey courts are closing another false excuse by law enforcement to justify an illegal search by claiming, “I smelled marijuana.”  Of course it is impossible for a defense attorney to disprove, what someone claims he or she smelled.  Law enforcement knows that a “smell” cannot be tagged into evidence.

Quotes of the Day:  "Three things I cannot escape: the eye of God, the voice of conscience, the stroke of death. In company, guard your tongue. In your family, guard your temper. When alone guard your thoughts." - Venerable Matt Talbot

"It is not a unity of religion we seek but a union of religious people. We may not be able to meet in the same pew, but we can meet together on our knees (as Christians)"

Archbishop Fulton J Sheen.

(908) 354-7006
277 North Broad Street
Elizabeth (Union County), New Jersey 07207

Criminal Defense Lawyer, for Union, Essex, Hudson, Middlesex, Bergen, Somerset counties.

Friday, February 20, 2015

The Best Thing to Do If You Are Contacted By the Police to Discus a Criminal Matter.

Most people would be shocked at the number of people who voluntarily speak to the police when confronted about their possible involvement in a disorderly person’s offense, traffic offense or crime.

Most people are under the false impression that they can talk their way out of being charged or arrested for a crime which they may or may not have committed.

The theory which most people hold, is that their explanation, or side of the story, will convince law enforcement that they are mistaken.  Whether or not, this is true, means little to the questioning officer.  In other words, the suspect being questioned never knows, or is never told by the police officer, whether the suspect is the person who they believe committed the crime, and convinced of the suspect’s guilt.  In that case, no matter what he or she says, he or she will be arrested after he or she speaks.  Stated differently, the interrogating officer holds all the playing cards and the officer will not reveal his cards, or what he is thinking.  Most suspects erroneously believe that by speaking to the officer that the officer will reveal his thoughts and evidence against him.  This is simply false, and the experienced interrogating police officer understands this.  Therefore, the suspect being interrogated will gain absolutely nothing by presenting the suspect’s side of the story.

Of course, it goes without saying, but some stupid suspects believe that they can male it up as they go along.  Not only is this a crime under federal law, intentionally lying to a federal law enforcement is a federal crime, but stupid because most suspects do not have a photographic memory and will not remember what facts they told 10-minutes prior, if asked the same question differently again.

In summary the best way to handle any questioning by law enforcement is to simply state to any law enforcement office that seeks information from you regarding your possible involvement in a crime, disorderly person’s offense or serious traffic infraction is the following:  “At this time I have decided to consult with my criminal defense attorney before I proceed further with any further questions.” 

In summary the best practice when faced with an allegation by law enforcement is to assert your constitutional right to remain silent under the Fifth Amendment to the United States Constitution. This constitutional right is yours, do not give it away.  For further information on criminal defense in New Jersey go to:

P.O. Box 261
277 North Broad Street
Raymond Building
Elizabeth, N.J. 07207
Office Phone: (908) 354-7006
Cell Phone:   (201) 240-5716
Dated: February 20, 2015

Tuesday, February 17, 2015

Federal District Court Anne Thompson Grants Writ of Habeas Corpus for Racketeering Case.

On March 5, 2003 a criminal jury in the Superior Court, Monmouth County, convicted alleged racketeer, Ray Cagno.  Cagno was found guilty of conspiracy to commit racketeering and the murders of victims Angellino and Randazzo.  The first trial (2002) ended in a mistrial when the witness for the State, Salvatore Lombardino refused to testify against Cagno.  However, the State alleged that while leaving the courtroom at the first trial, Lombardino gave Cagno a “thumbs up sign”, and stated to Cagno, “hang in there kid.”  At the second trial Lombardino was not called as a witness, but two detectives for the New Jersey State Police testified as to their observations of Lombardino at the first trial.  In summations the prosecutor asked the jury to infer that the witness’ silence; and his prior in-court conduct constituted evidence of Cagno’s guilt of the conspiracy between them.  The case went all the way to the New Jersey Supreme Court which affirmed the conviction with one justice dissenting, Justice Albin.

In Cagno v. Warren (N.J. District Court, 2014) the federal district court for the District of New Jersey, Judge Thompson, granted the habeas relief holding that Cagno’s Fourteenth Amendment due process rights were violated when he was convicted of conspiracy to commit racketeering at Petitioner’s second trial because the state should not have been allowed to present evidence of Salvatore Lombardino’s refusal to testify at Petitioner’s first trial.  Hence, Cagno’s Sixth Amendment right to confront all witnesses against him was violated.  Citing, Douglas v. Alabama, 380 U.S. 415 (1965).  In New Jersey the statute of limitations is an absolute bar to the prosecution of the offense. State v. Short, 131 N.J. 47, 55 (1993)

Further, because the State offered no other evidence to support a finding that the racketeering conspiracy continued beyond the statute of limitations period, which was five-years, the conviction could not stand.  Jackson v. Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970).  Both of those cases standing for the well settled proposition, that it is a violation of a defendant’s due process rights, for a conviction to be entered unless the state proves its case beyond a reasonable doubt, as to each and every element of the crime.

Although federal courts rarely grant a Writ of Habeas Corpus, this case is a good example in which the federal district court exercised its authority and granted such a motion.  The Writ of Habeas Corpus is usually the last line of defense to an unlawful conviction, unless the defendant is lucky enough to discover newly discovered evidence which would have proved his or her innocence if had been discovered at trial.  In that case, the defendant can reopen the process up again at the state court level, starting with the trial court.

Thoughts on Truth:  Veritas Quo, “Where truth is found.” 

A moral wrong can never be a civil right.

The further society deviates from the truth the more a society will hate that truth.

Law Office of Vincent J. Sanzone, Jr.
Elizabeth, N.J.
Tel. No. (908) 354-7006
Dated: September 11, 2014

Post-Conviction Relief, Writ of Habeas Corpus, Union Essex, Hudson, Morris, Bergen, Middlesex, Ocean, Monmouth, County Criminal Defense Attorney, Jersey City, Newark, Elizabeth, New Brunswick, Freehold, Toms River.

Thursday, February 5, 2015

Admissibility of a Confession or Prior Statement by the Court of a Defendant Admitting Guilt Does Not End the Discussion

Many inculpatory statements (admitting guilt), admitted by the court does not end the discussion.  To often criminal defense attorneys will file a miranda motion to exclude the statement from being admitted into evidence, but fail to argue to the judge or jury, whatever the case may be, that the statement, although admissible, is not reliable.  What do I mean by that?  Reliability simply means whether the statement is truthful.  Most laymen would be shocked to learn that a large majority of suspects admit to crimes for which they are innocent, and that the confession is false.  Most people would be shocked to learn that innocent people often admit to crimes which they did not commit.

People confession to crimes for various reasons, both for practical (which they later learned was not practical), or for psychological reasons.  Most often it is a combination of the too.

In 25-years of criminal practice this New Jersey criminal defense attorney has experienced a large number of defendants who had confessed to a crime or unlawful conduct in which they were innocent.  In fact, because of the sophistication of the jury and the fact that took their reasonable doubt oath seriously, they recognized that the confession was false, and entered verdicts of not guilty. .   

To begin this discussion we must start with the suspect’s first encounter with law enforcement. The suspect being confronted with law enforcement questioning experience various emotions which sometimes lead to the idea that the quickest way out of the situation is to tell the cop what he wants to hear, cooperate, and he will give me a brake. Of the course the brake never comes and the suspect is cuffed and every charge that the cop can think of will be charged.

The emotions that the suspect faces, especially a suspect who has never had any previous encounter with law enforcement, are numerous, such as jail, having to post bail, embarrassment, fear, anxiety, intimidation by the questioning cop, psychological and physical pressure by the cop, having to tell family and spouse, expense of hiring a lawyer, the loss of a job or profession, divorce, loss of child custody, publicity, notifying ones employer and embarrassment of co-workers finding out, which all lead to the false conclusion that the best way to eliminate all or some of these future problems is telling the cop what he wants to hear.

In addition, it is not unheard of for a law enforcement to use physical coercion.  Such as a suspect being dragged out of his home in the freezing cold without a coat or cuffed outside in the cold sitting outside on a sidewalk, until a confession or consent to search is obtained from the suspect.

In New Jersey our courts have long recognized that sometimes people confess to crimes that they did not commit.  Even if the trial court admits a confession the State must still produce at trial, “independent proof of facts and circumstances which strengthen or bolster the confession and tend to generate a belief in its trustworthiness, plus independent proof of loss or injury.” (such as a dead body or injured victim).  State v. Lucas, 30 N.J. 37, 56 (1959)  This requirement is to help insure that an innocent man is not convicted “solely out of his own mouth of a crime that never occurred or a crime committed by someone else.”  State v. Johnson, 31 N.J.  489, 502-503 (1960)

Lastly, the failure of a trial court to advise a jury of this requirement, that the confession must be corroborative, will result in a reversal of the conviction. State v. Roach, 146 N.J. 208, 229 (1996)

Before you decide in hiring a criminal defense attorney who should carefully review the lawyers qualifications, experience and professional results before you make this important decision.

Quote and thought for the day:
“It is not enough to demand justice. Justice, as Our Lord taught, is to be hungered and thirsted after as a means of wellbeing. Just as hunger and thirst can never be forever satisfied in this life, neither can the requirement for the divine gift of justice.” Sean Fitzpatrick

277 North Broad Street
P.O. Box 261
Elizabeth (Union County), New Jersey 07207
Office Phone No. (908) 354-7006
Cell Phone No.   (201) 240-5716
Dated:  February 5, 2015

Monday, February 2, 2015

In a Criminal or Quasi Criminal Case Including DWI the Defendant Never Has the Burden of Alerting The Prosecutor to Missing Evidence

Although a fundamental principal of the criminal justice system and corollary principals of procedural due process the defendant in a criminal case never has the obligation to alert the prosecution to any deficiencies in its case.

This attempt to shift the burden to the defense arises more frequently in New Jersey cases involving driving while intoxicated cases.  In these cases the municipal judge will often ask defense counsel prior to trial as to whether the defense is satisfied that the State has provided the necessary Alcotest discovery.  This question is improper because defense counsel has no obligation to confirm or deny whether the State has provided discovery and/or evidence to prove its case beyond a reasonable doubt.  In seminal case State v. Collins, 262 N.J. Super. 230 , 237-238 (App. Div. 1993), the appellate division made it clear that the defense attorney has no obligation to help the State prove its case by calling attention to any missing element of the offense before the State rests.

This equally applies to the admission of a laboratory certificate offered by the State.  In this case defense counsel has no obligation to present conflicting evidence regarding the report prior the submission of said report at trial by the laboratory analysis.  N.J.S.A. 2C:35-19 imposes no such burden on the defendant, and such a shifting would be unconstitutional. State in the Interest of J.H., 244 N.J. Super. 207, 217 (App. Div. 1990)

Attorney Vincent J. Sanzone, Jr., has handled hundreds of criminal and quasi-criminal cases in New Jersey for the last 25-years, in Union, Hudson, Essex, Middlesex, Bergen, Somerset, Morris, Ocean and Monmouth counties.

P.O. Box 261
277 North Broad Street
Elizabeth, N.J. 07207
(908) 354-7006
Dated: February 2, 2015

Quote of the day and words of Wisdom.

Benedictus qui venit in nomine domini”- Latin for “blessed is he who comes in the name of the Lord”

To be complacent in evil is always wrong, to commit and accept evil even for the alleged good is always morally wrong.

C.S. Lewis, “We do not need more Christian Lawyers, we need more lawyers who are Christian.”