Possession with intent, aggregation of amounts no longer permitted in federal prosecutions

Prepared as a public service from the Law Office of Vincent J. Sanzone, Jr., Elizabeth, New Jersey, a criminal defense attorney fighting for your acquittal.

(Telephone, 908-354-7006)

In United States v. Rowe, a federal appeals court reversed a 1,000 grams of heroin case based on the fact that the defendant was engaged in numerous smaller sales.

The Third Circuit held that the Prosecutor can no longer aggregate the sales.  In this case the court held that it was improper for the government to add up several smaller possessions and distributions to reach the 1,000 gram level.

In order to convict the defendant for possession with intent to distribute the thousand grams the defendant had to possess and intent to distribute this amount at a single time.

Although this law does not apply in New Jersey it should because many prosecutions of larger quantities of CDS is made by the State adding up all the quantities to reach the over 5 ounce level.

The court turned to the reasoning in U.S. v. Benjamin (possession of handgun case), and held “we conclude that possession of 1,000 grams of heroin begins when a defendant has the power and intention to exercise dominion and control over all 1,000 grams, and ends when his possession is interrupted by a complete dispossession or by a reduction of that quantity to less than 1,000 grams.”

Law Office of Vincent J. Sanzone, Jr., practicing criminal defense for 29 years.

Trial Court Allowing State’s Expert To

State v. Yasin Simms, decided March 15, 2016 by New Jersey Supreme Court.

In this case the prosecutor presented the testimony of Detective Lockett of the Atlantic County Prosecutor’s Office as an expert “in the field of narcotics use and distribution as well as the accompanying aspects of narcotics distribution.”

At trial the prosecutor posed a lengthy hypothetical question to the detective which included the assumed fact that Detective Ruzzo actually observed defendant hand a buyer ten packets of heroin for cash. That assumed fact, however, was not based on Ruzzo’s testimony, because the detective observed only an unidentified object in defendant’s hands.

The expert also testified that the co-defendant conspired with defendant to distribute drugs, which was another way of saying that defendant conspired with the co-defendant. Defendant did not object to the hypothetical question or to the response, and he did not present any witnesses.

The jury convicted defendant of possession of heroin, possession of heroin with the intent to distribute, however, the New Jersey Court reversed holding that well established case law holds that ultimate questions of guilt or innocence is for the jury to decide and not the state’s so-called expert.  Furthermore, it was impermissible for the so-called expert to testify to facts, i.e., that the detective saw Heroin being transferred since this was not a fact that was even in evidence.

 

In defending a CDS/narcotics case it is important to know what evidence offered by the prosecutor is objectionable.  An experienced criminal defense attorney would have known that this type of testimony is inadmissible.

If you are charged with a narcotics, CDS or other drug related offense you must consult an experienced criminal defense attorney.  Attorney Sanzone has been practicing criminal law and defending against narcotics offenses for 26-years.

Law Office of Vincent J. Sanzone, Jr.        

CriminalDefenseNJ.comwww.criminaldefensenj.com (908) 354-7006    

277 North Broad Street, (Union County) Elizabeth, N.J

 

 

 

High School Chaperones Cannot Be Prosecuted In New Jersey For Oversees Class Trip In Which It Was Alleged That They Engaged In Sexual Contact With Students.

Prepared as a Public Service by the Law Office of Vincent J. Sanzone, Jr., a New Jersey Criminal Defense Attorney.

In a recent New Jersey Supreme Court case, State v. Sumulikoski, the court held that alleged criminal activity conducted oversees on a class trip could not be prosecuted in New Jersey.  In this case both the trial court and appellate division held that N.J.S.A. 2C:1-3(a)(1) conferred such jurisdiction.  Reversing, the Supreme Court held that because all of the alleged actions occurred oversees the proper jurisdiction, if any, should be Germany, and not New Jersey.

It is strange how this case had to be correctly decided by the Supreme Court, both the trial court and appellate division were dead wrong in holding that N.J.S.A. 2C:1-3(a)(1) conferred jurisdiction to the New Jersey courts for a crime that allegedly had been committed in Germany.  This is especially troubling because Germany's criminal laws are dis-similar to the criminal laws of New Jersey?  For example, in Germany the age for consensual sexual contact is 14-years of age, while New Jersey it is 18-years of age.  Further, the nightmare for defense counsel trying to investigate the alleged crime scene, interview witnesses, or call witnesses to testify at trial would be impossible.  All of these procedural issues would of course deny the defendant a fair trial.

Justice Oliver Wendell Holmes once said that he did not do justice, he just did the law.  Isn't that the real problem with our legal system.  Often law and justice work at cross-purposes, one thing has nothing to do with the other.  Law without authentic justice is a game, charade or a tool for social injustice for the poor and marginalized. 

If you have been charged with a sexual crime in Essex, Union, Hudson, Somerset, Morris, Ocean, and Monmouth County you must consult an experienced criminal defense attorney.

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

Attorney and Counselor of Law for the Criminal Defense

277 North Broad Street

P.O. Box 261

Elizabeth, N.J. 07207

(908) 354-7006

CriminalDefenseNJ.com

Quote of the Day:  “For every wise owl you may expect a few cuckoos.” Rev. George William Rutler

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

Prepared by the Law Office of Vincent J. Sanzone, Jr., a New Jersey criminal defense attorney.

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: criminaldefensenj.com

Law Office of Vincent J. Sanzone, Jr.

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

CriminalDefenseNJ.com

Prosecutor Must Reveal Confidential Witnesses Prior Cooperation with Law Enforcement under New Jersey Law.

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

In State v. Hernandez the New Jersey Appellate Division held that in all cases in which the prosecutor will use a confidential informant to testify (CW), the State must provide to defense counsel all cooperation agreements as well as details regarding the extend of the cooperation.  In this case the prosecutor filed an interlocutory appeal, appealing the trial court’s ruling that the defendants were entitled to broad discovery regarding a confidential witnesses cooperation with law enforcement in other cases.  The appellate division granted the appeal and affirmed the trial court.

In this case the CW engaged in three cocaine buys with the defendants.  The State intended to have the CW testify as to those buys.  In discovery the prosecutor provide the name of the CW, his criminal history and a copy of the  cooperation agreement which the State had with the CW.

The defense requested additional discovery in the form of the nature and extend of cooperation, as well as any benefits which the CW received for working with the prosecutor on the cocaine purchases.  Specifically, the defendants requested a privilege log detailing internal memorandum and correspondences between the prosecutor and the CW which the prosecutor deemed privileged.  In addition, defendants requested any audio tapes of the CW, his e-mails to the prosecutor, and any statements that the CW had made, which included any investigation reports regarding the CW on the other cases in which the CW had cooperated.

The trial court agreed with the defendants and ordered the discovery subject to any redactions as to specific names and address’ in the other cases.  This included the requirement that the prosecutor electronically search its data base to provide defense with information regarding all past cooperation in which the CW was involved.

In deciding this case the appeals court cited the seminal case Brady v. Maryland, 373 U.S. 83, 87-88, 83 S. Ct. 1194, 1197, 10 L. Ed.2d 215, 219 (1963). In that case the State is required to provide the defendants with the record of any statements, of any individual with relevant information or evidence in the case, which are within the possession, custody or control of the prosecutor. Citing Rule 3:13-3(b)(1)(G). In addition to that the State is also required to provide defense counsel with all other exculpatory information or material, which would include pending charges, plea bargains or cooperation agreements for which a witness may be seeking favorable treatment for his trial testimony. State v. Long, 119 N.J. 439, 488-89 (1990).

Before you decide on hiring a criminal defense attorney you should carefully review the criminal attorneys and decide whether that attorney has the experience and competency in handling your criminal case.

Food for thought:  About twenty-years ago the welfare state was being assaulted, along with the export of livable working wages oversees by the rich and powerful.  To take its place was the punishment state promoted by both the republican and democratic parties.  This downward escalator for the working class and poor, by taking away their jobs  and safety net, created a vast army of unemployed poor.  Capitalism needed a replacement and the penitentiary was their answer.  The prison population in the United States has increased every year and we have gone from a working state to a prison state.

Quote of the Day: Theologian Cardinal Baronius’s once wrote, “The Scriptures tell us how to go to heaven, not how the heavens go”

Law Office of Vincent J. Sanzone, Jr.

277 North Broad Street

P.O. Box 261

Elizabeth (Union County), New Jersey 07207

CriminalDefenseNJ.com

Office Phone No. (908) 354-7006

Cell Phone No.   (201) 240-5716

Dated:  January 30, 2015

New Jersey Criminal Law Defense Attorney, Lawyers, and Attorneys, serving Union, Hudson, Essex, Bergen, Monmouth, Ocean, Middlesex, Somerset and Mercer counties, Attorney Reviews, Review of Union County Criminal Lawyers.

New Jersey Appellate Division Rejects Waterfront Commissions Legal Definition of “Inimical Association” as it Applies to an “Association” with an Alleged Organized Crime Figure

In the Matter of Commission Proceeding on Revocation of License of Pasquale Pontoriero, ____ N.J. Super. _____ (App. Div. 2015, the New Jersey Appellate Division on January 7, 2015, although affirming the license revocation of Pasquale Pontoriero, to work as a longshoreman hiring agent, the Appellate Division nevertheless held that the Waterfront Commission erred in that case holding that a longshoreman’s associate with a known organized crime figure is ipso facto inimical to the Waterfront Act.





For a full copy of the decision to to:

http://www.criminaldefensenj.com/images/Pontoriero_Decision.pdfhttp:/

In this case the Administrative Law Judge for the Waterfront Commission adopted a strict liability standard and revoked the Waterfront registration of Mr. Pontoriero because of Pontoriero’s alleged association with known organized crime figure Tino Fiumera and Steven DePiro. In that case the Administrative Law Judge and the Waterfront Commission held that regardless of the facts or circumstances that if a longshoreman, checker, or maintenance personnel associate with a known organized crime figure that it is automatic revocation of his or her license.

In rejecting the Waterfront’s strict liability standard in Pontoriero the Appellate Division held that the commission must analyze the factors found in the New Jersey casino control case,  In re Staluppi, 94 N.J.A.R. 2d, 31 (1993).  The factors are:  (1) The nature and sensitivity of the licensee’s position; (2) The time elapsed since the licensee’s last interaction with the associate; (3) The duration and frequency of the association; (4) The purpose and nature of the association; (5) Whether the association was attenuated through third-parties; (6) The associate’s character and reputation; (7) The licensee’s knowledge or reasonable efforts to determine the associate’s character and reputation; (8) If there is more than one associate, the number of associates, and the relationship amongst them; (9) Termination of the association, if any; (10) The reason for any such termination; and, (11) Any other relevant facts or circumstances.  Apply these factors to the Pontoriero case the appellate division held that since Mr. Pontoriero was a hiring agent, a highly sensitive to corruption and that Pontoriero had invoked the his Fifth Amendment right to remain silent when asked would he favor hiring a Genovese family associate over a non-Genovese associate.  Under these facts it was reasonable for the Commission to hold that a reasonable observer could conclude that Fiumara and DePiro held inappropriate influence over Mr. Pontoriero, and hence, the revocation of his license by the Commission was proper.  It was undisputed on the record that Fiumara and DePiro were members of the Genovese crime family.

In the final analysis this is a good case and helpful to the license workers at the New Jersey and New York docks whom decide to litigate their case in New Jersey courts. Further, the case is helpful because the New Jersey courts for the first time expressly defined the term “inimical associate” as it applies to the Waterfront Commission Act.  The definition that was previously used by the Commission in all of their cases pre-Pontoriero has now been rejected.  The definition of strict liability used by the Waterfront Commission in pre-Pontoriero cases was overly broad and permitted the Waterfront Commission to act in an arbitrary and capricious manner, and thus, unfairly treated longshoreman, checkers and maintenance personnel, when proceedings were brought against them by the Waterfront for associating with an organized crime figure.  Now under the Pontoriero case it will be much hard for the Waterfront to revoke a license for “inimical association”, with a organized crime figure.

This is a public service blog provided by the Law Office of Vincent J. Sanzone, Jr., Esq., and is not intended to give any specific legal advice regarding any specific case now before the Waterfront Commission or any case in the future.

If you have a case before the Waterfront Commission you are invited to contact the Law Office of Vincent J. Sanzone, Jr., an experienced New Jersey-New York Waterfront lawyer who has represented numerous International Longshoreman Members, and longshoremen, checkers and maintenance personnel before the Waterfront Commission, for a consultation to discuss your case.

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

P.O. Box 261

277 North Broad Street

Elizabeth (Union County), New Jersey 07207

(908) 354-7006

CriminalDefenseNJ.com

New Jersey New York Waterfront Attorney-Lawyer for the hardworking ILA members, longshoreman, checkers, maintenance men, who will protect your rights and fight and help you retain your job.

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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.”

The Falsely Accused and Wrongly Convicted: Opening and Closing Statements and What the Jury Must Know About Reasonable Doubt

There is no firm statistic on the number of people sent to prison who were falsely accused and wrongly convicted for crimes which they were innocent.

In today’s society and our criminal justice system in the United States it takes nothing more than the words of one accuser.  In contrast under ancient Jewish law found in the Talmud, going back many thousands of years a conviction could not be sustained without the independent testimony of at least two independent witnesses, who could testify independently and consistently as to what they witnessed.  Remember the biblical story of Susanna in the Book of Daniel who was accused of adultery by two wicked men because she would not have sex with them. In this story Daniel saves the young girl's life when he requests that the judge questions each of the men separately to hear their story.  When the judge asked them what kind of tree did they see the young girl have sex under each of the men gave a different story.  Both men were put to death by the judge for perjury and Susanna was set free.

Today, our legal system does not afford this basic protection, under modern law, anybody can accuse anybody of anything and that in the majority of cases is enough probable cause for the police and prosecutors to have someone arrested and stand trial.  The single word of a single witness will suffice, and there is rarely, if ever, any penalty or prosecution for perjurous

testimony.

It has been estimated by some that anywhere from five to ten percent of the people convicted of crimes, included people who take pleas, because they are forced to, are actual innocent.  Ohio State University did a study and came to the conclusion that approximately ten-thousand people per year in the United States have been wrongly convicted after trial or plead guilty when they were innocent.

Accordingly, it is without argument that the system does fail, and that anyone that believes that the system is without failure simply is ignorant of the truth.  Although most jurors understand the importance of applying the reasonable doubt standard, that is, that no juror can vote for conviction unless the prosecutor proves its case beyond a reasonable doubt, some do not understand the true meaning of this very important legal concept.  Under the law in every state including federal court, if there is any reasonable doubt, the defendant get’s the benefit of the doubt, and they (the jurors) have the legal and moral obligation to vote not guilty. If in every case this concept was truly accepted and applied properly by the jury there would be less innocent people convicted of crimes that they did not commit.

The concept of reasonable doubt is the only protection that the accused has against a false allegation.  The concept of reasonable doubt is more than words, or a theoretical legal concept it is a physical shield to protect all people accused of a crime.  The concept of reasonable doubt applies to all faced with criminal prosecution, it does not, or should not, discriminate because of race, religion, gender, ethic background, or financial/community status.

If a jury refuses to accept, or dilutes the reasonable doubt standard the system fails.  The doubt as to someone’s guilt can never weigh in favor of the prosecution, since a jury that does that raises the probability that they have participated in a grave injustice, an injustice which is gravely immortal.   A jury must understand that the law requires and they must accept that a person may not be innocent, but still not guilty of the crimes charged.  In other words a jury is not charged with decided guilt or innocence’s that would be an impossible task for mere mortals.  The law requires only that the jury applies the reasonable doubt standard.  When the jury gets its verdict sheet at the end of the case while in deliberation, nowhere on that sheet will they see a check off for innocent.  The concept and distinction is subtle but very important.

Sadly in recent history we have seen a large proportion of people convicted of sexual crimes based on the sole testimony of the accuser.  These types of cases must be examined even more carefully since there is usually no evidence to substantiate the accusers claim, other than  the words of the accuser. Motives for such false accusations are numerous and varied and is beyond the topic of this article.

An example of false claims can be found in the accusations against the Catholic clergy.  A high proportion of clergy have been falsely charged and wrongly convicted of sexual assault charges in which they were innocent.  Because of media hype and yellow journalism many in the press are so happy and eager to publish and endorse the account of the accuser that there is no such thing as unbiased journalism when it comes to covering these types of cases.  Following this biased media hype unfortunately juries in criminal cases involving Catholic Priests are to often interested in convicted a Catholic Priest because he is simply a Catholic Priest. 

One case is particularly troubling is the false accusation and wrongful conviction of the Catholic Priest Father Gordon MacRae.  A summary of this appalling case can be found at:  

 

http://araminthethicket.blogspot.com/2013/10/justice-and-priests-right-of-defense-in.html

The concept of reasonable doubt was not applied in this case, and Father MacRae was convicted because he was a Catholic Priest, and tried and convicted before the trial by the media.  The accuser in that case committed a massive fraud on the criminal justice system, and every legal scholar who has examined this case has come to the conclusion that Father MacRae was unjustly convicted for crimes in which he did not commit.

The wrongful conviction of Father MacRae must be overturned.  Father Gordon MacRae has already served over 26-years in prison in New Hampshire for a crime which he did not commit. Justice for this falsely accused Priest is long overdue.

Our New Jersey Judges Have Constitutional Rights

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

The charges against Superior Court Judge Raymond Redden and Municipal Court Judge Gerald Keegan are unfounded and if

the Supreme Court accepts the recommendations of the Disciplinary Review Board our Judges will be forced not to attend any religious functions or meetings in which the participates share in a common table.

As it stands now many Judges throughout the state, as part of their personal religious apostolate, regularly, or occasionally, attend religious meetings in the form of spiritual retreats, religious organizations and meetings, in which other participates, may or may not be facing pending state or federal criminal charges.  Such meetings could be, but not limited to such things as attending a meeting at the Knights of Columbus, religious retreat house, Seder meals at the Synagogue or Temple, or at the Muslim Mosque during the last day feast for Ramadan. 

What is very troubling about this grievance is that the Catholic Bartimeous Family group was not an eating club, but rather a Catholic religious group dedicated to the apostolate to healing, prayer and faith, which concluded after the meal with a Catholic Mass.

Is the Disciplinary Review Board arguing that our judges are no longer permitted to attend religious functions or meetings in which food is served at a common table?  Is the Disciplinary Review Board now arguing that unless a criminal background check is done on all present the Judge cannot attend the religious function or meeting?  Or is the DRB arguing that before the Judge can attend such a meeting that the Judge first review the list of participates to ascertain who among the group might have a pending criminal or civil case before them, or their vicinage? 

The actions of the DRB in this case are a further example of the erosion of our religious liberties and hopefully our Supreme Court will recognize this as such.  Our Judges have the First Amendment constitutional right to religious freedom and express and they should not have to choose between their judicial office or their full practice and expression of their religious faith.

The secular pop-culture which continues to marginalize people of faith must end.

Vincent James Sanzone, Jr., Esq.

September 25, 2014

New Jersey Appellate Court Gives a Brake to Unlicensed New Jersey Drivers Caught Driving Without a Driver’s License.

Brought to you as a public service from the Law Office of Vincent J. Sanzone, Jr., Esq.

On August 11, 2014, the New Jersey Appellate Division held in State v. Armando Carreon that any person convicted of being an unlicensed driver while driving can only be sentenced to a jail sentence or fine but not both.  This is good news for never licensed drivers because most municipal court judges will interested in getting a fine from the convicted motorist.  If so, the municipal court judge will not be foreclosed for also giving a custodial term sentence pursuant to N.J.S.A. 39:3-10.

In this particular case which the appellate division reversed the sentence, because the defendant was a third time offender he was sentenced to a fine of $756.00, plus court costs, and a ten-day jail sentence.

For people who have been previously licensed to drive the statute states that the defendant will be either fined or custodial term, but not both, for violators who have previously been licensed to drive.

If you have been charged with a motor vehicle offense you should consult with an experienced New Jersey criminal defense attorneyhttp://www.criminaldefensenj.com to help optimize the chances of obtaining a favorable result for your case.

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

Wrongly Accused of a Crime, You are Not the Only One.

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

Innocent people are unjustly arrested everyday in the United States.  Police don’t always get it right, they make mistakes; they of course are only human.  In some cases unfortunately police officers fabricate a case.   This may be done for many reasons but some of the reasons may be that the police just want to close the case and charge someone  that they believe is a  “bad guy” anyway, so what does it matter.  Shocking, yes, but is a fact of reality and happens more than we think.  Yes shocking law enforcement is a competitive business and some cops are looking to make a name for themselves, get in the news paper, make lots of overtime, or make detective, or stay a detective.   Of course most police officers are hard working, and perform their duty with honor and integrity, but even these officers make mistakes, become to zealous or get lazy or sloppy in their investigation.

Attorney Vincent J. Sanzone, Jr., has been practicing criminal defense in New Jersey for 23-years and has had many cases in which innocent people have been unjustly accused, and exonerated due to the tireless efforts and skill of Attorney Sanzone.  Whether it is with the wrongful planting of evidence by the police, false and fabricated confession planned by the police, misidentification, overbroad indictments, are only some of the reasons, Attorney Sanzone has successfully obtained dismissals and acquittals of some of his criminal clients.

The formula of experience, dedication and meticulous preparation is the method in which these results are obtained.  If you or someone whom you care about has been wrongly accused of a crime, you must make the most important decision in your life in retaining an experienced and affordable New Jersey Criminal Defense Attorney. 

CriminalDefenseNJ.com

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

277 North Broad Street

P.O. Box 261

Elizabeth, New Jersey

Telephone No. (908) 354-7006; Cell No. (201) 240-5716

New Jersey Criminal Law Defense Attorney Serving, Union, Essex, Hudson, Bergen, Middlesex, Ocean, Monmouth, Passaic, Somerset, Mercer, Gloucester, Cumberland, Atlantic, Cape May counties.

Driving While Intoxicated; Refusal to Submit to Breath Test; Field Portal Breath Testing; Leads to Possible Affirmative Defense under the Confusion Doctrine

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

More and more local police departments are using portable field breath testing devices for probable cause to arrest DWI /DUI suspects.  Although the New Jersey Supreme Court has not approved such  devices, and they are not admissible in court to prove probable cause or the offense of driving while intoxicated or impaired.  However,  more and more police department are using these machines to test suspect’s breath at the scene of the motor vehicle stop.  For years the Coast Guard and New Jersey State Police have been using these devices to test operators of vessels and boats in New Jersey waterways for probable cause to arrest the boater.  However, not until recently are these devices being used by more local police departments.

The use of these portable breath machines at the scene, pre-arrest, might be fertile ground for the affirmative defense under the confusion doctrine.  Under established New Jersey law a defendant who is confused regarding whether he can remain silent (i.e., after being given his/her Miranda rights), and whether because of said rights he must submit to the breath test at the station can raise some interesting issues.  Under State v. Leavitt, 107 N.J. 534, 542 (1987), the New Jersey Supreme Court addressed this issue.    Normally, refusal to submit to the alcohol breath machine (Alcotest), at the station cannot be justified, and someone who refused to submit to the test will be charged with refusal which carries the same penalties and driving while intoxicated.  However, the Supreme Court has held that it is possible, under the right fact pattern, for the defendant, to offer the affirmative defense of confusion, under very limited circumstances, if applicable to the facts of the case. 

This doctrine of confusion seems to be more relevant than before based on the fact that police officers who use the portal machines at the scene to test breath might be creating confusion on the part of the motorist.  For example if the motorist submits to the portable test and is arrested, and than given his Miranda rights to remain silent.  Such actions on the part of the police might cause confusion on the part of the motorist who again is asked to submit to a (station house official Alcotest) test, after he/she has already been given his Miranda rights to remain silent.  By requesting the motorist to submit too a second  test, one at the scene, and one at the station has the potential in creating confusion on the part of the motorist, who, in most cases because of the consumption of alcoholic beverages might have less  cognitive ability to begin with. 

In a recent case in Union County, the use of the two machines did create confusion on the part of the motorist who was arrested for both DWI, and refusal.  Because the motorist submitted to the portable test at the scene, arrested, then given his Miranda rights to remain, silent, and then asked to submit to a second test at the station, created a mix which lead, in that case to the dismissal of the refusal charge, and the defendant having plead only to the none-per se, 3-months loss of license DWI charge.  In that case the culmination of these facts caused the defendant to be confused and had no intent to refuse the test at the station.  Because the prosecutor looking at the facts fairly and objectively recognized the problem, and realized that in good faith that he could not prove the refusal beyond a reasonable doubt, and accepted the plea.

 

If you have been arrested or charged for DWI or driving while impaired you are advised to seek the consultation and retention of an experienced criminal defense attorney Vincent J. Sanzone, Jr., Esq., (CriminalDefenseNJ.com) who has many years of experience in defending people accused of this serious motor vehicle defense.

Your decision in choosing a New Jersey criminal defense lawyer is important, make that choice wisely.  I invite you to look at the proven results of Attorney Sanzone. CriminalDefenseNJ.com

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

YourCivilRights@gmail.com

Why Innocent Defendants Take Plea Bargains?

This is blog is presented as a public service and for general criminal legal information by the Law Office of Vincent J. Sanzone, Jr., Esq. 

CriminalDefenseNJ.com

LawOffice of Vincent J. Sanzone, Jr., Esq.

277 North Broad Street

P.O. Box 261

Elizabeth, New Jersey

Telephone No. (908) 354-7006; Cell No. (201) 240-5716

It is without dispute that the State may not exert an unnecessary price for defendants that exercise their constitutional right to a jury trial.  United States v. Jackson, 390 U.S. 570 (1968); Garrity v. New Jersey, 385 U.S. 493 (1967); Griffin v. California, 380 U.S. 609, (1965)

That is the law, but the reality is that innocent defendants, both in State and Federal court often take a plea for something that he or she did not do, just to avoid losing at trial and doing double or triple the jail time after conviction.  Although legally the trial sentencing cannot impose a “trial tax”, upon the defendant after conviction, the reality of the situation is that with the draconian sentencing laws and guidelines, such as discretionary or mandatory extended terms, parole ineligibility, consecutive sentences, etc., defendants who refuse plea offers and lose at trial in most cases go to jail for a very long time.  The pressure to take a plea is so strong that very few defendants, whether innocent or guilty, will take the risk at losing at trial.  The cards are stacked against the defendant to such a large degree that taking a plea is the only option. 

The prosecutors in criminal cases have all the cards; they deal them as they choose.  They make the final decisions, they offer the pleas, and sometimes they are given on a take it or leave it basis.  They know their power and they use it to extract pleas.  Even judges sometimes are frustrated with the position that the prosecutors take, but they are powerless and cannot force to the prosecutor to be reasonable.  Often many good judges will attempt to 

appeal to the sensibilities and to the notion of fairness with the prosecutor, but those attempts are often futile.  Because the separations of powers, the executive and judicial branch are co-equals and neither branch can interfere with the other, most of the time the judge must remain silent.  Not to say that there are not some good prosecutors who attempt to do the right thing; however, in most cases prosecutors get their instructions from a chain of command, such as trial supervisors, reviewing committees etc.

Plea bargains it is argued, keeps the system alive because without plea bargains the judicial system could not function.  Because 95% of the criminal cases result in plea bargains and the system could not survive without the plea bargain system, plea bargains are a necessary evil which is necessary for the system to work.   This is true at the lower level, and begs the question.  The real question is who is controlling the plea bargain system, and why do the prosecutor’s have all the cards.  Why not equally penalize the prosecutor office if they lose at trial, in the form of a monetary settlement to the acquitted defendant or at lease a payment of his or her attorney fees.  As the system stands now the prosecutors have zero downside and all the upside.  If there was a penalty imposed when the prosecutor lost a case they would be more careful in pursuing only the meritorious cases and offering plea agreements that were fair. 

As it stands now every legislative body in ever State is making it more and more difficult for sentencing judges.  Every politician that wants to be reelected wants to pander to the public that he or she is hard on crime.  There is no end in sight.  Let’s be fair, and make the constitution work for all, even the criminally accused. 

Nobody knows when the table will be turned on them, and be unjustly accused of a crime.  Did Governor Christie or Lieutenant Governor Kim Guadagno ever thing just a few months ago that they would be accused of something, if true, would be the criminal charge of official misconduct?

Quote of the Day:
First they came for the Socialists, and I did not speak out-- Because I was not a Socialist.
Then they came for the Trade Unionists, and I did not speak out-- Because I was not a Trade Unionist.
Then they came for the Jews, and I did not speak out-- Because I was not a Jew.
Then they came for me--and there was no one left to speak for me.

Governor Signs New Law Increasing Monetary Compensation of Person’s Unjustly Convicted and Imprisoned.

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

Under N.J.S.A. 52:4C, a defendant who was unjustly convicted and served time in prison is now entitled to recover twice his or her annual salary, or $50,000.00 per year, which ever is greater, for each year unjustly incarcerated in prison.  In a lawsuit for wrongful conviction the law suit must be filed against the Department of Treasury.

However, the new law prohibits anyone from recovering any money if he or she pleas guilty to the crime in which he or she is imprisoned.  This twist in the new law will in effect eliminate payments to unjustly convicted defendants, because in New Jersey many innocent defendants take pleas to avoid lengthy prison sentences if convicted after a jury trial.  This is true because pleas to lesser included sentences sometimes eliminate draconian sentences and force innocent defendants to take pleas.  Unlike New York, New Jersey will almost never outright dismiss a criminal case.  In New Jersey prosecutors will extract some sort of plea, even if it means pleading to a disorderly person’s offense.  This new law will only promote the extraction of guilty pleas from innocent defendants.

Therefore, overall the change in the law will actual limit State liability, and gives no incentive for prosecutors to help insure that innocent people are not unjustly convicted and sent to prison for crimes they have not committed.  Therefore, the new law will make fewer defendants eligible for payments.

Law Office of Vincent J. Sanzone, Jr.

P.O. Box 261

277 North Broad Street

Elizabeth, N.J. 07207

(908) 354-7006

YourCivilRights@gmail.com

CriminalDefenseNJ.com

Dated: December 31, 2013

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

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

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?

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

P.O. Box 261

277 North Broad Street

Elizabeth (Union County), New Jersey 07207

(908) 354-7006

CriminalDefenseNJ.com

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