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.”

Know Your Rights, a Civil Forfeiture Answer Can be Used by the Prosecutor as Evidence Against the Criminal Defendant a Judge Held In Hudson County Criminal Division.

Written as a Public Service to the People by the Law Office of Vincent J. Sanzone, Jr., Esq.
Served with a forfeiture civil complaint while criminal charges are pending, be careful what you say, you might have waived your fifth amendment right to remain silent.
In a case recently decided by one trial judge, a Hudson county criminal judge held that the admissions made in the civil answer is admissible as to the defendant’s guilt in the underlying criminal case.
In a case of first impressions a New Jersey trial judge says a defendant's answer to a civil forfeiture complaint is admissible in a criminal prosecution arising from the same facts.
The fact alleged by the prosecution is that the CDS found in the defendant’s mother’s apartment in a Hudson County apartment as a result of a search warrant was being possessed with the intent to distribute.  However, along with the drugs was cash in the amount of $3,293.00 which the defendant claimed belonged to him.  The defendant made that admission when he filed a civil forfeiture answer to the prosecutor’s forfeiture civil complaint to forfeit the money.
The State had no evidence directly linking the drugs and money to defendant other than the defendant’s admission in his answer.
The trial court refused to bar the admissions under United States v. Simmons, 390 U.S. 377 (1968),http://supreme.justia.com/cases/federal/us/390/377/ which held that a criminal defendant cannot be forced to choose between his Fourth (illegal search) and Fifth (right to remain silent) amendment rights.  In other words nothing that the defendant says in a motion to suppress can be used against him at trial by the government, unless the defendant testifies and only by way of impeachment.
I am not so sure that this case would stand constitutional muster if the New Jersey Supreme Court was presented this issue.
Law Office of Vincent J. Sanzone, Jr.,Esq.                    P.O. Box, 277 North Broad Street, Elizabeth (Union County), N.J. 07207

Telephone: (908) 354-7006                                  E-Mail, YourCivilRights@gmail.com

Quote 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

Dated: November 21, 2013

Giving a False Statement to Law Enforcement and Right to Remain Silent.

Similar to federal law it is unlawful for anyone to give a false statement to a State law enforcement officer or a civil State investigator assigned to the Office of the Insurance Fraud Prosecutor’s Office, with the purpose of hindering the detention, apprehension, investigation, prosecution, conviction or punishment of another, or him or herself, N.J.S.A. 2C:29-3a(7) and N.J.S.A. 2C:29-3b.(4).  If the false relates to an investigation of a second degree crime or greater, the offender is in violation of a third-degree crime (3-5 years), if the statement relates to an investigation of a third-degree crime the offender is subject to penalties of a fourth-degree crime (18 months).  Otherwise, if the statement relates to a fourth-degree offense or traffic or motor vehicle summons it is a disorderly person’s offense.

Therefore, knowing this, it is absolutely essential that anyone being questioned by law enforcement regarding an investigation into possible criminal charges invoke their right to remain silent under the Fifth Amendment to the United States Constitution.  Because anything that they might say which later turns out to be false or misleading, even if innocently made, can result in possible criminal charges which are separate and apart from the crimes being investigated.

Similarly, N.J.S.A. 2C:21-4(b) provides that the making of a false or misleading financial statement is a crime of the third degree.

Therefore, again, it is imperative that anyone applying for al loan, credit card, car loan or mortgage take extreme care in not overstating ones income.

On September 19, 2011 Elizabeth Board of Education employees Maria L. Munn, Angela Lucio and Peter W. Abitanto were arrested by the New Jersey State Police on charges made by the New Jersey Attorney General for third degree theft by deception and third degree tampering of public records or information.

The State alleges that these individuals attempted to defraud the federally subsidized school lunch program designated for low income children. It appears that the State Attorney General is basing one of the charges on a violation of N.J.S.A. 2C:21-4(b) (making of a false or misleading financial statement), in connection with the Elizabeth School lunch program.  The second charge is theft by deception which is a second degree crime if the amount is over $75,000.00.  Because the amount alleged by the State is under $75,000.00, but over $500.00, the crime is a third degree charge.

Before you are questioned by law enforcement it is highly recommended that you consult with an experienced criminal defense attorney.    

Law Office of Vincent J. Sanzone, Jr.

CriminalDefenseNJ.com

Elizabeth, New Jersey

Dated: September 19, 2011