No Expungement for Endangering Convictions in New Jersey (sexual or non-sexual convictions).

BAD NEWS FOR PERSONS CONVICTED OF ENDANGERINNG CHARGES OF A SEXUAL OR NON-SEXUAL NATURE.

In the recent decision, State of New Jersey v. N.T. (December 4, 2019), the Appellate Division in a decision affirmed the denial of a petitioner seeking an expungement for an endangering the welfare of a child (Title 9, non-sexual conviction).  The denial of an expungement is pursuant to statute, and until the New Jersey legislature amends the law, persons convicted of these offenses are barred from obtaining an expungment of the conviction.

The decision is troubling because it also bars the expungement of a non-sexual endangering conviction (Title 9), as well as sexual endangering convictions.  In this case the defendant was intoxicated on the beach and went into the water where she was having trouble in the water because of her intoxication.  The prosecutor charged her with endangering because her intoxication and her inability to swim without assistance, caused her “child distress.”  Hence, the basis of the endangering charge. (Give me a break what a frivolous charge by the county prosecutor).

The defendant entered the drug court program which allows expungement of arrest and conviction after successful graduation of the program, the trial court denied the expungement which was affirmed by the appellate court in this decision.

This criminal law information was provided as a public service by the Law Office of Vincent J. Sanzone, Jr., Esq.  A competent and experiences New Jersey Criminal Defense Attorney and trial lawyer with proven results for dismissals and acquittals, and not guilty verdicts.  Providing best practices legal defense and serving all counties in federal, state and municipal court.  Elizabeth, Newark, Jersey City, New Brunswick, Paterson, Hackensack, Trenton, Toms River, Freehold, Somerville, Mount Holly.

Law Office of Vincent J. Sanzone, Jr., Esq.

(908) 354-7006

criminaldefensenj.com

YourCivilRights@gmail.com

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, CriminaldefenseNJ.com.

 

 

Defendant’s Right to Remain Silent at Sentencing In Municipal Court

It has been a custom is many municipal courts in New Jersey for the judge to turn to the defendant at the time of sentencing and ask the defendant as to his prior driving history.

This often occurs in the context DWI sentences, in which the prosecutor will inform the court that a search of the defendant’s abstract does not reveal any prior driving while intoxicated offenses.  Often the court will than turn to the defendant, whose represented by counsel, rather that is correct, and whether the defendant has been convicted of any DWI offenses in this or any other state. 

I am surprised that in many cases the defense attorney does sits quite without objecting to this line of questioning by the judge.  The defendant at the time of sentencing does not give up his 5^th amendment right to remain silent.  Pursuant to N.J.S.A. 2B:25-5.1 it is the prosecutor’s obligation to research the defendant’s prior driving record and report that information to the court.  Neither, defense counsel, or the defendant has any obligation to waive his  Fifth Amendment right to remain silent, or for the attorney to violate his attorney client privilege with his client to the court.

This blog is prepared as a public service by the Law Office of Vincent J. Sanzone, Jr., Esq., and is not intended to provide any specific legal opinion or advice to anyone reading this blog.

Law Office of Vincent J. Sanzone, Jr., Esq.

P.O. Box 261

277 North Broad Street

Elizabeth, N.J. 07207

CriminalDefensenj.com

Yourcivilrights@gmail.com

 

“If you want peace work for justice.”

Assistant County Prosecutor and his Investigator Caught Suppressing Exculpating Evidence: Will Justice Prevail?

Prepared as a Public Service to the People by Vincent J. Sanzone, Jr., Esq.

According to press releases and other legal documents, former Camden County Prosecutor, Harry S. Collins and his Camden County Prosecutor investigator, Matthew Woshnak, conspired to suppress exculpatory evidence, which shed serious doubt on the reliability and credibility of the State’s sole witness in a murder prosecution.  After the defendant was unjustly sent to prison he filed a post-conviction relief motion.  

In response to that motion, an honest prosecutor from that office, Teresa Garvey provided to the defense a note which she found in the file which stated in relevant part, “Per [investigator Falco], his witness B-Nice (resident of Camden Jail) stated that my witness was paid $$ by the Puerto Rican to identify my [defendant] as the shooter.”

More troubling is the undisputed fact that this alleged witnesses account of events was the only piece of evidence against the defendant, and as stated by the Camden County Prosecutor, “there was never any other evidence, physical nor testimonial, directly implicating”, the defendant.

This is one example how sometimes the system does not work and how some prosecutor’s and their investigators engaged in willful misconduct in order to convict a person who they personally believe is guilty, in spite, of the objective evidence, to the contrary.  If true, not only should this prosecutor be disbarred but should be criminally prosecutor.  Likewise the investigator should be criminally charged for official misconduct and be barred from ever holding a law enforcement position again in New Jersey. The clear message that must be sent is that the judicial system will not accept conduct of prosecutors that are deceitful, dishonest, and was the caused of a defendant to either take a plea or convicted after a jury verdict.

Most likely the Camden County Prosecutor and State Attorney General will bring no criminal charges or ethic violations against Collins and Woshnak.  This sends the wrong message since prosecutors who have the highest duty to insure that justice be done will not be deterred from committing this type of outrageous behavior. 

The majority of county, state and federal prosecutors have no interest convicting innocent defendants, and will disclose exculpatory evidence to the defense when discovered.  However, unfortunately this is not the case with all, and by the system condoning this type of conduct without prosecution will only send the wrong massage.

Law Office of Vincent J. Sanzone, Jr., Esq.P.O. Box 261

277 North Broad Street

Raymond Building

Elizabeth (Union County), New Jersey 07207

(908) 354-7006

CriminalDefenseNJ.com

Quote of the day:

Wrote by George Bernard Shaw, but made famous by President John F. Kennedy. "Some people see things as they are and say why?  I dream things that never were and say, why not?"

Appellate Division Held Boro of Princeton Police Officer Could Not Open Car Door of Motorist that Appeared to Be Falling Asleep While Vehicle was Parked and Idling.

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

In State v. Bennett the appellate division rejected under the caretaker exception of the warrant requirement to open the car door to a motor vehicle that was parked and idling to investigate a possible DWI. 

The defendant vehicle was parked in front of a convenience store near Princeton University in the early Sunday morning (2:43 A.M.).  The police officer suspecting that the motorist had been drinking approached the motor vehicle and opened the door.   The officer ordered the defendant out of the vehicle and requested that the defendant perform field sobriety tests, which the officer alleged he had failed.  At the station the defendant refused to submit to a breath test.

The motion to suppressed was granted by the trial court, however, the law division judge reversed and held that under the caretaker exemption the officer had the duty to investigate whether the defendant was intoxicated.  However, in a published opinion the appellate division reversed the law division and held that the caretaker exemption was not applicable here and that the officer overstepped his authority by immediately ordering the motorist out of his vehicle.

This case affirms well established case law that the opening of an automobile door without probable cause, or reasonable articulable suspicion, or after a valid automobile stop for a motor vehicle infraction, is unlawful.  Note, an officer may request a motorist to exit the motor vehicle after a motor vehicle stop.  What makes this case unique is that the first thing that the police officer did was open the door, and order the motorist out.  If he had asked him to roll down the windows, and further facts indicated that the motorist was intoxicated, than the police officer could have ordered the motorist out to perform field sobriety tests.

As the court in Bennett held, the officer should have knocked on the window, and first determine whether the motorist had alcohol on his breath before requesting that the motorist exit the vehicle.

Law Office of Vincent J. Sanzone, Jr., Esq.

CriminalDefenseNJ.com

277 North Broad Street

Raymond Building

P.O. Box 261

Elizabeth (Union County), N.J. 07207

(908) 354-7006

Union County Criminal Defense Attorney Protecting the Rights of the Criminally Accused for 23-Years.  Practice devoted exclusively to criminal law.

Another Example How Some New Jersey Municipal Courts are All About Money and Little About Justice

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

Know one has to reminded that municipal courts are supposed to be in the business of dispensing justice, not generating revenues for cash strapped municipal budgets.

Sadly most municipal court judges are pressured by municipal elected officials to generate fees and fines.  In recent years municipal courts are cash cows and without the enormous revenues generated by the court municipalities could not balance their budgets.

It goes without saying that municipal court judges that are merely revenue collectors for the towns that hire them are not performing their judicial functions.  Also finding the police officers credible in every case, and finding every defendant before them guilty, does nothing to foster the principals that judges are beyond such petty concerns.  The problem of course is that municipal court judges are hired at the behest of the town fathers you often gauge the performance of the judge in their town, not by judicial temperament, fairness and understanding of the law, but rather, how much money did the judge bring in last year.  

The problem was highlighted again when the Borough of Eatontown in Monmouth County engaged in a search for a new judge after seeing court revenues drop by more than 20 percent under prior judge, George Cieri, who appeared from press accounts to have good judicial temperament, fairness, and some compassion for assessing lower fines for the poor people who often came before him (let us be honest most people that are ticketed and arrested and appear in municipal courts are in fact the poor and minorities).


The problem surfaced when one councilman had no shame (Dennis Connelly a retired Eatontown cop) in urging his fellow council members to pick one attorney over another, and sole criteria was that this particular attorney was known to be a great revenue collector for the township in which he was currently employed as a judge.  Mr. Connelly also had the temerity to write according to press accounts that young and aggressive officers who were writing a lot summonses might get discouraged if the wrong judge was chosen.   He further wrote according to press accounts that Judge Cieri had a different philosophy of being a judge, whatever that means.  Although this is an extreme example of a person who has no understanding of the judicial system, this however, is not an isolated example.

All this was confirmed by the courage of the attorney Eugene Melody III, of Martin Melody in Little Silver, who pulled his name from the selection process when he wrote.  The town’s expectations are “inimical to my interpretation of how the constitution intended the third branch of government to function." Hats off to this courageous attorney to speak the truth.  The scandal also drew the attention of assignment judge Lawrence Lawson, who told the town to stop pressuring judges about revenues.   The issue of generating revenue over justice was also confirmed by Judge Cieri who complained to Judge Lawson about being pressured by the township.

The inherit conflict between justice and revenues in municipal court is a Statewide problem.  In the future the problem will only get worse as towns and cites scramble for every shrinking revenue sources and teeter on bankruptcy.   That is why all New Jersey municipal court must consolidate as Governor Christie has promoted, into joint municipal courts, with judges appointed by the Governor based on judicial experience, temperament, knowledge of the law and fairness.

Law Office of Vincent J. Sanzone, Jr., Esq.

P.O. Box 261

277 North Broad Street

Elizabeth (Union County) New Jersey 07207

Tel: (908) 354-7006

CriminaldefenseNJ.com

“If you want peace work for Justice.”  Pope John Paul, I