Friday, April 15, 2016

The Cunard of the Resisting Arrest Charge

This blog is being presented as a public service and for informational purposes by the Law Office of Vincent J. Sanzone, Jr.  Telephone Number (908) 354-7006

In 26-years of practicing criminal defense in the State of New Jersey it continually shocks me as to how many fabricated resisting arrest charges are filed on suspects who have not resisted arrest.  These false charges by police officers seem to be a routine standard charge that is filed against all suspects that the cop does not seem to like.  In addition, this charge will always be falsely lodged after the cop uses excessive forces, or beats up the suspect during the arrest.  This is done to justify the beating of the innocent suspect, and as false justification for the beating.  The Elizabeth, New Jersey Police Department, among others, are notorious for such charges, especially when the cop is looking for some downtime-vacation by saying he hurt is back to take off a couple of weeks in the summer.
It is often difficult to defend against such false charges because it is the word of the defendant against the word of the police officers, and most judges and juries, have no idea that some law enforcement people engage in such abhorrent tactics.  Sometimes the only way to defend such charges is to hope that somehow the incident was recorded.  Even with a video which clearly shows that the defendant was not resisting most judges will not dismiss the case but leave it to the jury to decide. That is why cities such as Newark, Elizabeth, Paterson, Jersey City, Orange, East Orange, Plainfield, refuse to install MVR video cameras in their patrol vehicles.

As written in a previous blog many cops knowing that they are being video recorded by an MVR tape, (motor vehicle recorded video) will continually yell out “stop resisting” to the defendant, even though he is not resisting, just so the cop creates a false record (show for later use) that the cop is trying to stop the defendant from resisting.

However, a recently decided unpublished opinion decided on April 13, 2016, State v. Pavan Patel, give some hope to defendants charged with this offense.  In this case the defendant was charged with resisting arrest after the defendant was unjustly assaulted by security guards at an Atlantic City casino.  The officer seeing the assault took the side of the security guard and started wrestling with the defendant attempting to put him under arrest. However, in this case the defendant was never told that he was under arrest.  Even though the municipal court and law division found the defendant guilty, the appellate division reversed in a good well written decision. 
In this case there was no question that the arrest was unlawful, however, even an unlawful arrest can result in a conviction for resisting arrest, if the suspect gives resistance to being handcuffed.  State v. Branch, 301 N.J. Super, 307, 321 (App. Div. 1997) However, it must be noted that the defendant might be justified in resisting arrest, and defend himself, if the police are using excessive force.  State v. Mulvihill, 57 N.J. 151, 156-57 (1970).

However, if the arrest is unlawful, as was in the Patel case, if the officer does not announce the intention to arrest, than the conviction cannot stand.  State v. Kane, 303 N.J. Super. 167, 182 (App. Div. 1997).  The defense to resisting arrest is not an affirmative defense but an ordinary defense as stated by the decision in Patel.  Accordingly, the State, not the defense, has the burden of disproving the defense. N.J.S.A. 2C:1-13(b); State v. Moultrie, 357 N.J. Super. 547, 555-56 (App. Div. 2003)
The appellate division reversed the conviction by holding that mere actions of the police officer that he was engaged in an attempted arrest was insufficient and therefore the conviction could not stand.

Law office of Vincent J. Sanzone, Jr.
277 North Broad Street, Elizabeth (Union County) N.J. 07207 (908) 354-7006,



Tuesday, April 5, 2016

The Witness Tampering Trap

N.J.S.A. 2C:28-5, Witness tempering states in subsection (a) Tampering. A person commits an offense if, believing that an official proceeding or investigation is pending or about to be instituted or has been instituted, he knowingly engages in conduct which a reasonable person would believe would cause a witness or informant to: (1) Testify or inform falsely; (2) Withhold any testimony, information, document or thing; (3) Elude legal process summing him to testify or supply evidence; (4) Absent himself from any proceeding or investigation to which he has been legally summoned; or (5) Otherwise obstruct, delay, prevent or impede an official proceeding or investigation.  Depending on the factors, a violation is a crime of the first degree (if the tampering involves a crime in which an 85% sentence could be imposed, a crime of the second degree if violence was used, otherwise it is a crime of the third degree.
As one can see from reading this statute the language of the law is extremely broad, vague, and subjective.  Does this law deter a defendant, his attorney, or his investigator from seeking out witnesses to prove his innocence?  Such a law would seem to have a chilling effect on the search for truth by the accused, fearing that any contact by the defense with any alleged victim/witness or witness could be construed to amount to a violation of the statute.
Could such activity be considered by law enforcement, if they wanted to be unfair and aggressive charge a defendant with witness tempering for actions which are in fact legal and do not amount to witness tampering? 
In fact, in one particular case in which Attorney Sanzone handled in Ocean County, the Ocean County Prosecutor did such a thing.  In this case the defendant was charged with burglary.  A witness at the scene (an employee of the suspect/defendant) told the police at the scene that his employer (suspect/defendant) did not enter the house.  Not satisfied with the witnesses’ response, and animosity toward the suspect, the Toms River police on the scene told the witnesses that if he did not give an official sworn statement that the suspect/defendant entered the house that the witness would be arrested as an accomplice.  Afraid the witness went to police headquarters and gave a sworn statement saying that his employer entered the house.  A few days later, the witness having remorse that he allowed the police to intimate him in lying for the police, wrote a certified letter to the police chief stating that he wanted to retract his statement, was intimated at the scene and wanted to give a truthful statement that in fact his employer did not enter the house.  A week later not having heard a response the witness sent another letter.  A week later the two detectives from the Toms River Police Department appeared at his home around 11:30 P.M. without notice.  Angry, the two detectives again threatened the witness telling him to if he did not stick to his original story that the witness would be arrested for filing a false police report.  If that was not enough the police told the witness to say that his employer/defendant told him to write the retraction letter, and if the witness did not he would be arrested.  Unfortunately, for the two detectives, the witness had audio recorded the detectives suborning perjury, committing official misconduct, and engaging themselves in witnesses tampering.  The defendant a few days later sent a copy of the audio tape to the Toms River Police Department and Ocean County Prosecutor’s Office.
Amazingly, even though the Ocean County Prosecutor had possession of the audio tape in which the detectives committed witness tampering, they nonetheless indicted the employer/defendant for witness tampering.  Four years later, and two days before jury selections, the Ocean County Prosecutor dismissed the witness tampering charge.  The defendant went on trial in the Superior Court of New Jersey, Ocean County for second degree burglary represented by Attorney SanzoneJury acquitted defendant of all charges.
Yes this is a true story and court records are public and well documented.  This unfortunately is what can happen with the witness tampering law.  Sadly, the two Toms River Police Department detectives were never prosecuted by the Ocean County Prosecutor, admonished, or disciplined by Toms River Police Department for their gross violation of law and official misconduct.  Beware. 
Law Office of Vincent J. Sanzone, Jr., Esq.
277 North Broad Street
P.O. Box 261
Elizabeth, N.J. 07207
(908) 354-7006