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Rosenberg, Perry Named ‘Top Attorneys’

Daniel Rosenberg and Robert Perry of Daniel M. Rosenberg & Associates were named two of New Jersey’s industry icons in SJ Magazine’s Top Attorneys 2017. The annual feature highlights peer-nominated attorneys based in Southern New Jersey who are doing standout work in various legal fields.

Rosenberg was named a top DWI attorney, and Perry was named a top juvenile attorney. This was both attorneys’ first nomination for the award.

“It’s an honor to be recognized by my peers as a top attorney in Southern New Jersey,” Rosenberg said. “I truly enjoy helping people and guiding them through difficult situations. It is not work when you love what you do.”

As a certified criminal trial attorney, Rosenberg specializes in many legal areas, including DUI/DWI. Although driving while intoxicated charges are not criminal, they can carry serious consequences, including a loss of license or jail time, if a driver is not represented well in court.  

Juvenile law is another nuanced part of the New Jersey criminal justice system the Daniel M. Rosenberg & Associates team is glad to specialize in. Perry said the complexity of this area of law only made his nomination more humbling.

“When a young person is alleged to have violated the law, it is critical their rights are protected and they receive aggressive representation that ensures their future is not unnecessarily impacted by the juvenile criminal justice system,” he said.

“It’s gratifying that our firm’s track record in both of these areas has been recognized,” Perry said. “We look forward to continuing to advocate for our clients’ rights in the courts.”

Whether you’re facing a DWI charge, have questions about juvenile law or need another form of criminal defense, the legal team at Daniel M. Rosenberg & Associates is ready to help. Call the office at 609-216-7400 or visit our Mount Holly or Voorhees locations to receive a free consultation on your case.

 

Nurse Arrested: A Lawyer’s View on Alex Wubbels’ Arrest

Perry Examines Cop’s Arrest of Utah Nurse

In a news story that has now gone viral, University of Utah Hospital nurse Alex Wubbels was arrested, although never charged with a crime, after refusing the demands of Salt Lake City police detective Jeff Payne’s demands to draw blood from an unconscious driver who was involved in a head-on collision. The entire contentious — and later violent — exchange was captured on police officers’ body worn cameras, and the videos were released in late August.

The video captures Wubbels on the phone with a superior and printing out an agreement between the police and the hospital that defined specific circumstances when a nurse can draw blood from an individual in conjunction with a police investigation.  She displayed this document to the detective and argued law enforcement’s request fell outside the parameters of the agreement.  In response, Payne forcibly placed Wubbels under arrest and told her the police were legally permitted to obtain the suspect’s blood, regardless of the what was stated in the agreement.

This incident raises several issues.

Did Police Have a Right to Obtain the Blood?

Setting aside the question of whether Payne’s conduct was appropriate, this incident raises an important and evolving issue with respect to Fourth Amendment protections against the unreasonable seizure of evidence by the government. Did the officers have the right to seize the suspect’s blood?

Much of the uncertainty with respect to this issue can be examined in the context of a 2013 United State Supreme Court case, Missouri v. McNeely.  In that case, a suspected intoxicated driver refused to provide a breath sample, and the officer drove him to a hospital and instructed a medical professional to draw a sample of his blood, which later proved he was intoxicated.  

Prosecutors argued the blood draw was necessary, as a person’s blood alcohol content will naturally dissipate over time. A sample obtained at a later time would not accurately reflect the amount of alcohol in the defendant’s blood stream.  The prosecutors argued this alone constituted exigent circumstances — an emergency situation that could help a suspect escape or destroy evidence — that permitted a search and seizure of evidence without first obtaining a warrant. The United States Supreme Court disagreed, and held that the natural dissipation of alcohol in a person’s blood stream was not exigent circumstances that permit police to obtain evidence without a warrant or consent.

However, the court did not rule that any warrantless seizure of a person’s blood is unconstitutional.  Rather, the court held these issues must be addressed on “case by case based on the totality of the circumstances.”  The Supreme Court focused on whether the circumstances rendered obtaining a search warrant impractical, and noted that technology has made it measurably easier for law enforcement to obtain a warrant by telephone and other means.  

In the Utah case, law enforcement officers were seeking evidence from someone who was not a suspect. To the contrary, the driver in the hospital was a victim in the crash. According to the hospital’s agreement with police, the hospital may only draw blood when a warrant has been issued, the patient consents or the patient is under arrest. Because none of these facts were present, Wubbels refused to draw blood.  

This may be an example of law enforcement having good intentions while behaving inappropriately; these officers may have sought the blood sample to clear the driver from any allegation of wrongdoing. I don’t practice law in Utah, so I don’t know if there was a mechanism to obtain a warrant for a victim or witness. However, if they lacked a legal mechanism for obtaining a blood sample, this certainly would have presented a problem for police. It is being reported Payne waited for approximately an hour prior to placing Wubbels under arrest.  It is at least possible that he could have sought and obtained a search warrant from a judge prior to taking matters into his own hands.  

If this event had occurred in New Jersey, and the blood was being sought from a suspect, I would forcefully argue that any exigency here was created by the detective’s failure to obtain a warrant, and the results of the blood draw must be suppressed as evidence.

Should Wubbels Have Been Placed Under Arrest?

On its face, the video depicting Wubbels’ arrest is disturbing.  She is plainly trying to follow protocol, involving her superiors and reviewing the agreement between the police and the hospital. Payne lost his patience, forcibly handcuffed her and placed her in a patrol vehicle. The detective justified this action by asserting his superior ordered him to place her under arrest for interfering with the investigation.  

I won’t presume to be an expert in Utah law; however, in New Jersey, it is illegal to obstruct the administration of law or hinder the investigation of another person.  It is being reported that Wubbels refused to have hospital staff draw the blood, and also refused law enforcement to draw blood themselves.

Is this obstructing or hindering the investigation of another person? There are arguments to be made on both sides.

From law enforcement’s perspective, I suspect they were attempting to clear the driver from any allegations of illegal conduct and were concerned that the passage of time would impair their ability to adequately investigate the incident.  In New Jersey, it is not a defense to obstruct police action so long as law enforcement is acting in good faith.  As I often tell my clients, you don’t win arguments with cops on the street. You win them in court.

However, it is difficult to justify placing a nurse under arrest for following her employer’s protocols, in particular because she was following the instructions of her superior.  This raises the question of whether nurse Wubbels was “purposefully” obstructing the investigation, which would be a requirement to convict her under New Jersey law.  It appears clear that her intention was not to obstruct the investigation, but rather to follow what the hospital perceived to be the law.  Regardless of whether the nurse’s actions met the criteria for a criminal charge, the circumstances called for the exercise of discretion on law enforcement’s part.  

It is easy to watch the video and be critical of Payne conduct in this case, and criticism is almost certainly deserved.  From a legal standpoint, however, it’s not as simple as it seems.  

Body Worn Cameras

There is no question that body worn cameras (BWC) are the wave of the future in law enforcement.  This is a blessing and a curse for both police and citizens.  One benefit of BWC is that it memorializes police/citizen interactions and eliminates much of the “he said/she said” factual determination that accompanies litigation after an arrest.  This protects citizens from improper police action and protects law enforcement from false allegations of misconduct.  

Police have a difficult, stressful and dangerous job.  Most people would prefer that they not have every moment of their work day recorded.  On balance, the implementation of BWC is a beneficial tool in both law enforcement and policing the police.  

It is worth noting in this particular case that one officer subtly notified the other officers present that his BWC was activated prior to the arrest.  Also, it is doubtful that this incident would have made national news had it not been for the audio/video memorialization of the entire event.  Regardless, the addition of BWC presents a dramatically different landscape for both police and citizens than that before their introduction.  

Was Wubbels Right?

The answer to this question may depend on your particular vantage point.  For police, she may have been obstructing law enforcement from performing a legal function in clearing an innocent person from allegations of wrongdoing.  For others, Payne’s actions may have been wholly improper and unwarranted.  Regardless, the answer is not as simple as it may seem.

Any case where a suspect’s blood is seized raise questions of constitutional concern.  It is not uncommon for the issue to arise in DWI cases throughout the country, and the state of New Jersey.  Likewise, citizens who are arrested are entitled to due process and aggressive representation at every stage of a criminal case.  If you or a loved one has been arrested for DWI or criminal activity, the attorneys at Daniel M. Rosenberg & Associates are on the front lines of this evolving issue and offer free consultations.

New Jersey Bail Reform FAQ

Answer to Your Questions About New Jersey Bail Reform

What is bail?

Bail is a financial surety to guarantee a defendant’s appearance at trial. In order to receive the money back, you have to show up at court.

My loved one was arrested, and I was told I couldn’t bail them out. What’s going on?

As of January 1, 2017, New Jersey no longer uses a monetary bail system. Under the new law, you must go to jail if you are arrested, no matter how much money you have.

Does every charged defendant sit in jail while their case is being tried?

No. A judge will decide whether a defendant stays in jail or is released while the case continues.

Does this happen for every person who is arrested?

No. When someone is charged with committing a crime, law enforcement makes a decision to charge the defendant in one of two documents: a summons or a warrant.  If a defendant is charged on a summons, they are given a court date and released.  If a defendant is charged in a warrant, they are sent to jail and a judge decides if they should remain detained until the case is over.

Does everyone charged in a warrant go to jail, even if the charge is minor?

Unfortunately, yes. Trust me, I understand how frustrating this can be. This is why getting an attorney as soon as possible is important. Having an attorney early on in a case may prevent some difficulties.

What happens after the accused go to jail? Do they sit in a cell until the case is over?

No. The law requires the defendant to appear before a judge within 48 hours of their arrest. A prosecutor will then review the defendant’s case and determines whether or not it is appropriate to continue detention until the case is over.  If the prosecutor wants to detain or arrest the defendant, he or she must file a motion with the judge.

Can the prosecutor file a motion whenever they feel like it?

Short version: Yes.

Long version: While prosecutors are afforded a lot of discretion, the Attorney General of the State of New Jersey has developed bail guidelines advising prosecutors when they should apply for continued detention.

What if the charge is minor, like shoplifting? Can the prosecutor still file a motion seeking detention?

Yes.

If the prosecutor files a motion at the first appearance in front of a judge, can I talk to the judge and convince them to release my loved one?

No. There is nothing you or an attorney can do at the first appearance in front of a judge.  Once the prosecutor files the motion, the defendant will not be released that day.

Will my loved one have to sit in jail until the case is over?

Not necessarily. The law requires that a detention hearing take place within three working days of the prosecutor filing a motion to detain the defendant.

What happens at the detention hearing?

Prior to the detention hearing, Pre-Trial Services — a division of Probation and the Courts — will review the defendant’s case and produce a document called a Public Safety Assessment.

What’s a public safety assessment?

Each defendant is assessed on the risk they will fail to appear in court and the risk they will commit another crime if released. A number of factors are considered when creating this document, including a defendant’s criminal history, the crimes alleged and the defendant’s history of coming to court.  Each defendant is then assigned a numerical value between one and six reflecting Pre-Trial Services’ assessment of those risks.  The lower the number, the lower the risk.  Pre-Trial Services also makes a recommendation to the judge as to whether a defendant should be detained or released.

Does a probation officer decide if a defendant is detained?

No. While the judge can consider the Public Safety Assessment, the judge ultimately makes the final decision and can rule against the recommendation from Pre-Trial Services.

What happens at the hearing?

Typically, the prosecutor will introduce certain documents into evidence, including the complaint and probable cause statement (a document summarizing the allegations).  The prosecutor will then argue to the judge that the defendant should be detained.  The defendant’s attorney can respond to those arguments and argue that the defendant should be released.

Does anyone testify at the hearing?

Not usually. The prosecutor can proffer documents, or offer evidence in the form of documents in support of the case. In that instance, a live witness does not need to testify.  However, a defendant is permitted to do the same thing.

How will I know the details of what the prosecutor is alleging?

The prosecutor is required to hand over a substantial amount of discovery (police reports, etc.) at the pre-trial detention hearing.  This is one of the only good things about a detention hearing — we get to see the prosecutor’s file a lot faster.

What happens if the judge detains my loved one?

If the judge detains the defendant, the defendant will likely be detained until the case is over.  There is an expedited appeal process, but it is very difficult to overturn the judge’s decision.  In addition, part of the bail reform statute imposes some strict time constraints on the prosecutor, who is required to indict the defendant within 90 days.

What if the judge releases my loved one?

If the judge releases the defendant, there may be some strings attached.  For example, the defendant may have to report to probation every other week in person to ensure they did not flee.  Some defendants are also required to wear an electronic ankle monitor to verify their location.

What do I do when my loved one gets arrested and goes to county jail?

The very first thing you should do is contact an attorney. Not only can an attorney answer questions that are specific to your case, an attorney can also represent your family member at a detention hearing. The new bail reform law is complicated, so it’s important to speak to an attorney with experience in this arena.

Can you explain this more?

Absolutely. Our team at Daniel M. Rosenberg & Associates is always available to answer your questions during a free consultation. Call our office at 609-216-7400 to get in touch.

Ed ‘NJ Weedman’ Forchion & New Jersey Bail Reform Law

‘Weedman’ Challenges NJ Bail Reform

Half a year into the new New Jersey bail reform law, and already the new law is being challenged in court. This week, on July 12 and 13, Edward “NJ Weedman” Forchion will appear in Mercer County Court for a bail detention hearing. According to a July 10 press release and his May letter to the editor of the Burlington County Times, Forchion will challenge the New Jersey Bail Reform and Speedy Trial Act in court.

Forchion was arrested in March 2017 on witness tampering charges after allegedly selling marijuana out of his Trenton restaurant, and detained by the court. The court has denied his appeals to be released on bail.

“For over 200 years, the U.S. Constitution guaranteed bail and now Gov. Chris Christie has eviscerated it with the N.J. Bail Reform Act. I am a political prisoner that has been unconstitutionally detained since March 3, 2017,” Forchion said in the press release.

According to Forchion, the Bail Reform Act violates the Eighth Amendment of the U.S. Constitution, and contradicts precedents set by the U.S. Supreme Court in Stack v. Boyle and the N.J. Supreme Court in State v. Craig Johnson.

New Jersey voters passed the Bail Reform Act in 2014, and the law was enacted on Jan. 1, 2017. The act removes financial resources as a factor in a person’s pretrial detention, and therefore avoids letting dangerous criminals out on bail simply because they have the financial ability to buy their freedom.  

Instead, New Jersey judges now use a digitally-calculated risk score that evaluates factors such as the alleged person’s age, behavior, criminal history and severity of the crime to determine if they should be eligible for bail or not. Those who are granted bail must complete non-monetary requirements of bail at home while awaiting trial. Those who are denied bail must await trial in prison.

Getting Help With NJ Bail Reform

The attorneys at Daniel M. Rosenberg & Associates stay abreast of changes to the New Jersey legal environment militantly. If you’re looking for more information on bail reform in New Jersey, or need an experienced attorney to represent you in court, Daniel M. Rosenberg & Associates can help. Our compassionate team of aggressive defense attorneys are always available to provide consultations free of charge when you call (609) 216-7400.

 

Sources:
Forchion, E. (2017, July 10). Political Pot Prisoner Ed Forchion Ends Hunger Strike, Secures Bail Detention Hearing. Retrieved from https://www.send2press.com/wire/political-pot-prisoner-ed-forchion-ends-hunger-strike-secures-bail-detention-hearing/
Forchion, E. (2017, May 25). The Bail Reform Act violates the Constitution. Retrieved from http://www.burlingtoncountytimes.com/opinion/letters/the-bail-reform-act-violates-the-constitution/article_79c8f657-6ffd-53bb-9853-328aa1a5c28f.html
Merriman, A. (2017, March 18). NJ Weedman appeals decision to leave him in the joint. Retrieved from http://www.nj.com/mercer/index.ssf/2017/03/nj_weedman_appeals_decision_to_leave_him_in_the_joint.html

Turner Ruling Sets Questionable Precedent

Are the Courts Encouraging Prosecutors to Hide Evidence?

One cornerstone of the criminal justice process is a defendant’s right to know the specific facts and evidence the government intends to use against them in a trial.  This process is called “discovery,” and both federal and New Jersey courts require the prosecutor to turn over any evidence that is “exculpatory,” or favorable to the defense and material to the case. In the recent United States Supreme Court Case of Turner v. United States, the court addressed the consequences of a prosecutor’s failure to make a defendant aware of exculpatory evidence.

Since the 1963 case of Brady v. Maryland, precedent says a defendant’s constitutional due process rights are violated when a prosecutor withholds evidence that is “favorable to the defense and material to the defendant’s guilt or punishment.”  Evidence is “material” when there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding or trial would have been different.

In Turner v. U.S., approximately 10 defendants were alleged to have brutally raped and murdered a woman shopping in the District of Columbia in 1984.  The prosecutor used the testimony of two co-defendants and an eyewitness to paint a picture of a large group attacking the mother of six. Turner, along with several other co-defendants, was convicted.

Roughly 15 years later, in post-conviction relief proceedings, the defendants discovered the prosecutor had evidence that was not disclosed in the discovery process. Namely, that an eyewitness who testified at trial had given a prior statement wherein he observed two different suspects — including convicted felon James McMillan — at the scene of the crime before they ran away. Other withheld evidence includes information that one of the prosecutor’s key witnesses was high on PCP when meeting with investigators.

Before the Supreme Court, the government argued this evidence was not material and thus did not warrant a new trial.  The defense disagreed, arguing that, had this information been disclosed, they would have pursued a different theory and argument before the jury at trial.

The Supreme Court sided with the government, holding the withheld evidence “too little, too weak, or too distant from the pain evidentiary points to [warrant a new trial].”  In essence, the court held the prosecutor’s case to be too strong, and the suppression of this evidence did not make a difference. Justices Kagan and Ginsburg voiced a strong dissent, noting the entire tenor of the trial would have been different due to a more unified defense from multiple defendants.

While the Supreme Court limited its ruling to the facts of this specific case, and did not announce any radical changes in the ethical obligations of prosecutors, the ruling still imposes no consequences for the government’s inexcusable withholding of evidence that plainly should have been disclosed.

Let me be clear: I do not believe there is an epidemic of misconduct wherein there is systemic or conspiratorial bad faith on the part of prosecutors.  The vast majority of prosecutors are ethical to a fault and take their professional responsibilities seriously.  However, when the government hides evidence, the consequences for citizens are dramatic.  Innocent people are incarcerated.  Reputations are ruined.  The public’s confidence in the justice system is eroded.  Perhaps most importantly, the process is corrupted.

There was no debate that the prosecutor in Turner v. U.S. should have disclosed the exculpatory evidence at issue.  After the Supreme Court’s ruling, this prosecutor will face no meaningful consequences for this deliberate “tipping of the scales.”  That is unjust.

Moreover, the message sent from the court to prosecutors across the country is frightening: Go ahead and kick up chalk.  We’ve got your back.  Prosecutors already, and appropriately, enjoy certain immunities given the difficult decisions they are forced to make in even the most routine case.  And prosecutors, like the rest of us, will respond to incentives and disincentives.  Unfortunately, the court missed an opportunity in Turner v. U.S. to articulate and frame the discussion in a way that would provide appropriate motivation for prosecutors to fairly and openly err on the side of a more honest and transparent system of justice.

Justice for Megan: Implementing Megan’s Law

Tragedy in Hamilton Township, NJ

In July 1994, convicted sexual offender Jesse Timmendequas brutally raped and strangled Megan Kanka to death across the street from her New Jersey home. Megan was only 7 years old. Kanka’s family felt that, had they known a convicted sex offender lived nearby, they could have better protected their daughter and their family.

This tragic incident prompted a three month campaign that would soon inspire Megan’s Law, a ruling that requires notification of high-risk sex offenders’ whereabouts to be made public.

Megan’s Law in Action

After becoming New Jersey law in 1994, Megan’s Law was signed into federal law as of 1996 and is implemented across all 50 states. The controversial law has caught some backlash throughout the years for its privacy infringement and potential to victimize offenders who pose little to no threat to the community. However, Megan’s Law continues to prevail and officials are pleased with its progression.

Initially, the purpose of Megan’s Law was to help notify communities and neighborhoods when sex offenders lived or moved close by. The law requires convicted sexual offenders to register with the proper authorities, and neighboring communities, schools and organizations are made aware of their presence. It has since grown into a vast online community of registrants, including those with one-time and repeating offenses.

The New Jersey online registry includes the sex offender’s name, descriptions of the conviction and offense, address and a photograph of moderate to high-risk offenders. All of this information is available for public review, now accessible through a 900 number and CDs at police stations around the state. Details and extensive information on low-risk offenders are only made available to law enforcement and officials.

Megan’s Law Crimes

Convictions or adjudications of the following crimes require a person to register under Megan’s Law:

  • Aggravated Sexual Assault
  • Sexual Assault
  • Aggravated Criminal Sexual Contact
  • Criminal Sexual Contact (if victim is a minor)
  • Kidnapping (if victim is under 16 years of age)
  • Endangering the Welfare of a Child (in certain circumstances)
  • Luring
  • False Imprisonment (if victim is a minor)

Community Notice of Convicted Offenders

To ensure a community’s safety, local organizations and corresponding law enforcement must be notified of an offender’s release. The State Department of Corrections and Human Services are responsible for informing county prosecutors and law enforcement agencies about the presence of all sex offenders within the community.  In turn, the prosecutors must determine risk to the community – the likelihood that the offender will commit another crime.  

Prosecutors classify sex offenders who reside in the community as one of three tiers, based on the degree of risk they pose to the public:

  • Tier 1 Offenders – Sex offenders present a low risk of re-offense.
  • Tier 2 Offenders – Sex offenders post a moderate risk of re-offense.
  • Tier 3 Offenders – Sex offenders show a relatively high risk of re-offense.

The sex offender internet registry includes information pertaining to sex offenders within Tier 3 and some Tier 2 offenders. However, it excludes any information about those in Tier 1. Offenders who challenge the prosecutor’s risk determination receive hearings. Notification can proceed when the court issues a final order authorizing the county prosecutor to provide relevant information to the appropriate groups of individuals.  

Removal from Megan’s Law

Sex offenders may apply to the Superior Court of New Jersey to terminate their Megan’s Law requirement. This is only permitted if the offender has not committed another offense within 15 years following their conviction or release from a correctional facility.

Legal Support with Megan’s Law

Megan Kanka’s death was a major blow to the New Jersey community. However, her death is a reminder that we should do all we can to secure the safety of our families and our children. Take advantage of the resources provided to the public and don’t hesitate on asking questions.

If you have questions regarding Megan’s Law or sexual assault charges in New Jersey, Daniel M. Rosenberg & Associates are available to help. Call us today at (609) 216-7400 to get a free consultation on your case.

Bail Reform in New Jersey: A Sixty-Day Checkup

Bail Reform in New Jersey: A Sixty-Day Checkup

The new year brought with it a titanic shift in New Jersey’s criminal justice system. Signed by Governor Christie on August 11, 2014, the Bail Reform Law included an amendment to the New Jersey State Constitution that — for the first time in the state’s history — authorized the pretrial detention of defendants without bail. This NJ bail reform law did not take effect until January 1, 2017, and has since been met with mixed reviews. The most meaningful assessment and analysis, however, comes from our state’s appellate courts. Both these courts and the New Jersey Supreme Court give binding direction and instruction to judges, prosecutors and defense attorneys.

With a little over 60 days of contentious litigation having passed, the appellate division has already settled — for the time being — two of the most pertinent issues in pretrial detention hearings.

What Evidence Must the Prosecutor Provide to a Defendant?

The first case wherein the procedures of pretrial detention were addressed came on February 8, 2017, in State v. Robinson. The defendant was arrested and charged with murder. In the Preliminary Law Enforcement Information Report (PLEIR), a document that briefly summarizes the evidence available to law enforcement at the time of the arrest, police noted that law enforcement possessed surveillance footage relevant to the case. The defendant demanded that the prosecutor produce this footage, but the prosecutor refused. The judge presiding over the detention hearing ordered the prosecutor to turn over certain discoveries, including the surveillance footage. The state appealed.

An appellate court upheld the judge’s order at the detention hearing, finding that the plain language and purpose of the law compelled the production of materials relevant to the probable cause upon which the state relies when seeking detention. Moreover, the appellate court held that information included in the Affidavit of Probable Cause, a document that briefly spells out the evidence supporting the arrest of a defendant, is also subject to discovery. Finally, the appellate court made no distinction between materials in the possession of the police and materials in possession of the prosecutor. In short: If the police have it, so does the prosecutor.

Can the Prosecutor Rely on Hearsay at the Detention Hearing?

The second case, State v. Ingram, was decided March 1, 2017. The defendant was arrested and charged with various firearms offenses. As is the practice of prosecutors, the state relied upon an affidavit of probable cause and the PLEIR at the detention hearing, and did not produce any testimony from police officer(s) or other witnesses. The judge found that probable cause existed that the defendant committed the offense, and ordered the defendant held without bail. The defendant appealed.

On appeal, the primary issue was whether the prosecutor was required to produce live testimony when establishing probable cause, as opposed to relying upon the probable cause affidavit and the PLEIR. In other words, can the prosecutor proffer documents instead of calling live witnesses?

The appellate court held that the prosecutor is not required to call live witnesses. The court noted that federal criminal courts employ a similar system of pretrial detention and permit the proffering of documents instead of live testimony. The court further rejected the defendant’s argument that the plain language of the Statute, providing a defendant with a right of cross examination, also compelled the state to produce live testimony. Rather, the court held that if the state opted to produce live testimony, the defendant has a right to cross-examine the witness. The court declined to hold that the state was required to produce a witness, though. Finally, the court expressed concern over the volume of detention hearings and the risk of “mini-trials” monopolizing judicial resources.

The court did convey discretion to the judge and held that a judge could demand the prosecutor produce a live witness. The court did not address a defendant’s right to produce evidence by way of proffer in lieu of live testimony.

Conclusion

Sixty days in, the appellate courts have spoken regarding two significant issues pertaining to pretrial detention hearings. If this were a boxing match, it would be a split decision. Defendants walked away with a victory in that prosecutors must produce more discovery than they would prefer to hand over at this early stage. Prosecutors succeeded in holding off defendants’ demands for live testimony and an early crack at cross-examining law enforcement or other witnesses.

To be sure, NJ bail guidelines (Pretrial Detention) are far from settled. At some future juncture, the New Jersey Supreme Court will consider these issues, and those decisions will dictate procedure with far more authority. There are also countless other questions that will arise, and the devil is often in the details of the particular facts and circumstances before the courts. For now, though, pretrial detention hearings are simultaneously the law of the land and a work in progress.

If someone you know has been taken into custody as a result of being charged with a crime in New Jersey, the attorneys at Daniel M. Rosenberg & Associates, LLC can help. Knowing the law and the leanings of local judges and prosecutors is invaluable when presenting a defense to any criminal accusations and trying to avoid pretrial detention. Call (609) 216-7400 for an immediate, free consultation with experienced and compassionate counsel.

New Jersey Bail Reform and Speed Trial Act Is Now in Effect

New Jersey Bail Reform: It’s Here

During the general election of 2016, New Jersey voted to amend its state constitution. The people decided to remove money from their state’s bail equation and also to speed up trial dates for criminal defendants in New Jersey. The resulting Bail Reform and Speed Trial Act went into effect Jan. 1, 2017. Ultimately, the law aims to foster a more equitable situation for criminal defendants and make New Jersey a safer place.

New Jersey’s Jail Problem

In 2013, New Jersey jails were overcrowded with inmates. The overwhelming majority of these people were not convicts; they were simply awaiting their day in court but could not afford to pay bail.

Often, a lack of bail money means the difference between awaiting trial behind bars or within the comforts of one’s own home. In fact, the Drug Policy Alliance of New Jersey and consulting firm Luminosity found that a striking 38.5% of New Jersey inmates only remained in jail due to financial constraints.

Inmates’ situations grew worse with time — some were forced to stay behind bars for months on end. Based on numbers from October 2012, the state Attorney General’s Office discovered that New Jersey inmates spent an average of 314 days in jail before trial.

One young mother was stranded in jail for 17 months because she — like the majority of Americans — did not have access to $17,500. She was not a flight risk, she was not accused of a violent crime — she simply did not have enough money to be released from jail. The woman told a representative of WHYY Public Media, “I missed 17 months of my children’s lives. You know, birthdays and holidays and everything. You miss a lot. You come home, and everything is different.”

Not only is unnecessary incarceration devastating for inmates and their families, but it also drains the pockets of taxpayers who annually spend tens of thousands of dollars per inmate. When it became clear to New Jersey lawmakers that bail reform was in everyone’s best interest, they decided to solve the problem.

The Bail Reform and Speed Trial Act

In 2014, with support from Gov. Chris Christie, state lawmakers began drafting the bill (S946/A1910) that would become the Bail Reform and Speed Trial Act. After years of work by New Jersey legislators, the law went into effect Jan. 1, 2017.

At its core, the law says that criminal defendants are entitled to a timely trial and that financial circumstances should not play a major role in a person’s incarceration.

Before the act, nearly all criminal defendants could be released on bail — whether they were charged with a violent crime or a relatively minor offense like a traffic violation. Going forward, a judge will decide whether a defendant will be granted bail based on that defendant’s behavior — not their bank account.

Decisions will be, in part, informed by a digital risk assessment tool created by the Laura and John Arnold Foundation, in addition to existing New Jersey bail guidelines. The assessment tool evaluates a defendant’s behavior, type of alleged crime, criminal history, age, and other factors. The tool is intended to calculate the likelihood that a defendant will engage in any of the following three actions while released on bail:

  1. Risk that the defendant will skip their court date
  2. Risk that the defendant will commit another crime
  3. Risk that the defendant will commit a violent crime

Once given a defendant’s information, the digital tool produces a risk score. That number does not replace the judge’s sound reasoning, but rather, supplements it. The judge will consider each defendant’s risk score as they decide whether that person should await trial in jail or at home.

Defendants with low risk scores who are allowed to leave jail must complete their bail requirements through an alternative, non-monetary system. For example, a defendant might have regular phone calls or visits with a court-designated supervisor, maintain employment or schooling, or submit to drug testing and electronic monitoring, among other options.

At the other end of the spectrum, high-risk offenders may be denied bail — even if they can pay a hefty sum.

Additionally, the Bail Reform and Speed Trial Act dictates that any person who is arrested in New Jersey must receive a pretrial detention hearing within 48 hours. During this hearing, the court will utilize the assessment tool so that they can make a bail decision.

National Bail Reform

On a given day, U.S. jails hold around one-third of the country’s incarcerated persons. That means that there are currently about 730,000 jailed people who have not been convicted but are simply awaiting trial. Just as it was in New Jersey before the Bail Reform and Speed Trial Act, many people across the rest of America remain behind bars for months on end before they see a courtroom. This unfair practice — which disproportionately impacts low-income and African American populations — has inflicted much emotional pain on families across the country.

Overincarceration is also a burden to the federal taxpayer. In 2013, the Bureau of Justice Statistics released a report on U.S. correctional expenditures between 2005 and 2011. The report stated that local governments annually spent more than one-third of all funds spent by state and local governments on correctional institutions.

New Jersey’s Bail Reform and Speed Trial Act brought bail reform to the national discussion table. Six other states (Virginia, Delaware, Colorado, West Virginia and Hawaii) have also modified their approaches to bail and incarceration. With this momentum, top U.S. lawmakers may begin to consider changing the country’s criminal justice system.

Earnest, Aggressive Defense

The attorneys at Daniel Rosenberg & Associates have long supported the measures in the Bail Reform and Speed Trial Act. We believe this new legislation will positively impact those who are navigating New Jersey’s justice system. 

If you or someone you know is currently jailed in New Jersey, contact Daniel M. Rosenberg & Associates. No matter how much time you have spent in jail, we can help you protect your rights and make decisions that serve your best interests. Call us today at (609) 216-7400 to get a free consultation on your case.

 

 

Sources

  • Conte, Michaelangelo. “Bail Reform Assuming Nearly All Defendants Be Released Takes Effect.” NJ.com, The Jersey Journal, 3 Jan. 2017, www.nj.com/hudson/index.ssf/2017/01/bail_reform_assuming_nearly_all_defendants_be_rele.html. Accessed 31 Jan. 2017.
  • Henrichson, Christian, et al. “The Price of Jails.” Vera Institute, May 2015, www.vera.org/publications/the-price-of-jails-measuring-the-taxpayer-cost-of-local-incarceration.
  • Hernandez, Joe. “N.J. Will Eliminate Cash Bail, Speed Up Criminal Trials in 2017.” New Jersey Association of Counties, njac.org/n-j-will-eliminate-cash-bail-speed-up-criminal-trials-in-2017/. Accessed 31 Jan. 2017.
  • Kyckelhahn, Tracey. “Local Government Corrections Expenditures, FY 2005–2011.” Bureau of Justice Statistics, U.S. Department of Justice, Dec. 2013, www.bjs.gov/content/pub/pdf/lgcefy0511.pdf.
  • McCarthy, Niall. “Survey: 69% Of Americans Have Less Than $1,000 In Savings.” Forbes, 23 Sept. 2016, www.forbes.com/sites/niallmccarthy/2016/09/23/survey-69-of-americans-have-less-than-1000-in-savings-infographic.
  • Rosenberg, Daniel M. “Bail Reform in New Jersey.” Daniel M. Rosenberg & Associates, 7 Aug. 2014, www.danielmrosenberg.com/bail-reform-in-new-jersey/.
  • Herring, An-Li. “U.S. Jurisdictions Take Steps To Reform ‘Dishonest’ Bail System : NPR.” NPR.org, 17 Dec. 2016, www.npr.org/2016/12/17/505852280/states-and-cities-take-steps-to-reform-dishonest-bail-system.

The Night Of: A True Portrayal of Criminal Law

A New Jersey’s Criminal Defense Lawyer’s Opinion of “The Night Of”

It’s my experience that “true crime” TV isn’t always so true — the crimes are unrealistic, the detectives are more entertaining (and sometimes better looking…) than they are accurate, and in many cases, TV trials could not be further from reality. I have to admit, though, I was riveted as I watched HBO’s “The Night Of.” This eight-part limited series is the first crime show I’ve seen in a while that rings true to my experience as a lawyer and what my clients experience as they go through a trial.

More than solving the whodunit, “The Night Of” is about how incarceration brutalizes people, even before they get their day in court. In a sadly accurate way, “The Night Of” follows the main character, Naz, as he transforms from a good guy, from a good family, putting himself through college to a bulked-up, tattooed menace while awaiting trial on Rikers Island.

 

Real Trials in New Jersey

There are many steps in a criminal trial proceeding and, for the most part, “The Night Of” accurately follows these. As I watched the series, I was glad to see a television series follow along with the reality of a criminal case so closely.

New Jersey Arrests

The judicial system starts with a complaint, which is a document the police will file against a person who is arrested and accused of committing a crime. The complaint is a charging document that law enforcement produce containing the basic allegations of criminal conduct. A complaint can only be filed if a third party, such as a Judge or court administrator, agree probable cause exists that the defendant committed the crime alleged.

How quickly a person gets charged depends on the offense. If a person is pulled over and found with marijuana on them, the arrest and charges come quickly. For something that requires retroactive investigation, such as a murder or home burglary, a charge will come at the conclusion of their investigation. The vast majority of my clients with Daniel M. Rosenberg & Associates are arrested fairly quickly.

This is similar to “The Night Of.” The police arrested Naz fairly quickly for homicide, and mostly through a comedy of errors — the traffic stop, the 911 call about a burglary, the blood on his hand from her cut the night before and the knife in his car, for example. These details helped the police come to the conclusion Naz committed the crime.

Setting Bail In New Jersey

After being arrested, a Judge immediately assigns bail to the accused. If the person can make the bail, they pay it and get released from prison. If not, in New Jersey, the accused must attend a first appearance within 72 hours. At the first appearance, a Judge will advise him or her of the charges, of their constitutional rights and will review and potentially lower the bail if asked.

This is a crucial step in the criminal justice process and shows why it’s so important to obtain an attorney early. The accused are allowed to have an attorney at the first appearance, which allows me to argue their bail be set lower and to begin a dialogue with the prosecutor’s office.  In cases that garner media attention, it is critical that a defendant have an attorney who will strongly assert their innocence to prevent the unfair assumption by the public that they are guilty simply because they were charged.

“The Night Of” is a bit unusual in that Naz’s attorney approached him while seeing him in the holding cell. Typically, I will receive a call from a person’s family or loved ones to hire me on their behalf.  However, it is not unheard of for some attorneys to “hover” in certain areas to attract potential clients.

Awaiting Trial In New Jersey

After the first appearance, everything dies down for a significant period. If the defendant was able to make bail, they go home. Those who can’t make bail must wait for their trial in prison, and are entitled to have a bail review approximately every 30 days. During this waiting period, the county prosecutor reviews the case and decides whether to dismiss the case, remand it to Municipal Court or proceed as a felony in Superior Court.

When the prosecutor decides to move forward with the case in Superior Court, they must start collecting evidence to present to the Grand Jury — a selection of 23 jurors who decide if there is probable cause and evidence that supports the charges. Only 12 jurors have to agree for the case to move on to court.

I worked as an Assistant Prosecutor in the Grand Jury Unit for more than two years, so I’m intimately familiar with this process. Working with a Grand Jury is nothing like what you see on TV. It can take anywhere from three or four months to more than a year to get the case before the Grand Jury.

New Jersey Court and Trial

When the Grand Jury indicts a matter, the case formally enters the court system, and the first court proceeding is scheduled. Overall, the waiting process can take a year-and-a-half to two years from when a person is charged to when the case goes to trial. If the accused doesn’t have the money for bail, they will spend this time incarcerated.

This is where the bulk of “The Night Of” falls — Naz is accused of murder, neither he nor his family can make bail, and he spends a significant (although undisclosed in the show) period incarcerated waiting for his trial.

 

The Impacts of Prison

Although I would call the show’s portrayal of the trial grandiose, “The Night Of” did an exceptional job at telling the story of the American incarceration experience. Sadly, I’ve seen what Naz has been through many times with my clients.

I know from personal experience that incarceration does change people. For defendants like Naz, who are largely upstanding citizens, the experience comes as a rude awakening. These are people who typically never expected to end up incarcerated and treated like criminals. Unfortunately, our criminal justice system too often embraces a “one size fits all” approach to those accused of a crime without considering an individual’s specific circumstances.

In the show, Naz had to adapt to his surroundings for survival. This is a real depiction — I have seen clients change, losing the values they once had as they were forced to adapt to prison life. Whatever life they have on the outside is nonexistent inside a prison. It’s a terrible thing to see from the outside looking in.

In my experience, clients become akin to a turtle, retreating into their shell the longer they have been incarcerated. They often become quiet, subdued, introverted, tense and guarded, constantly protecting their physical and mental health. This adaptation can change a person, regardless of whether or not they are convicted.

“The Night Of” also accurately depicts an often overlooked element of the criminal justice system — the impact of incarceration and trial on the accused’s family. Not only is Naz’s family shamed in their community, but Naz’s father also can no longer work as a taxi driver because his taxi is evidence in the investigation. Both of Naz’s parents picked up extra work to make ends meet and pay their son’s attorney fees.

My clients’ families often face the same hardships, having to adjust their lives to help finance a trial and encounter the press and community gossip while still attending church, work or school. To some of my clients’ families, it almost feels as if they are on trial too.

 

Presumption of Guilt

Another component of “The Night Of” that rang true to me was the presumption of guilt.  While in some cases my clients are guilty of the crimes of which they are accused, it seems they often receive a guilty verdict in the court of public opinion before a court of law.

It is every American’s right to be considered innocent until proven guilty, however, law enforcement and prosecutors will often read into evidence with the assumption that my client is guilty. This is often true of the general public, as well. When my client’s picture is on the front page of the local newspaper with a headline that outlines allegations, many people assume my client is guilty.

Many times this is not true and my clients are innocent, despite how the evidence may make them appear. I was happy to see this unfortunate circumstance depicted in “The Night Of.” I don’t fault the lead detective for initially believing that Naz was guilty of murder — the evidence he had suggested so. Too often, though, the general public assumes this presumption of guilt only occurs in movies or on television. I have too many clients who will tell you this also happens in real life.

Both they and Naz experience irreparable damage during this time, an impact that cannot be undone if they are finally vindicated. I recently represented a young man whose charges were dismissed after two years. His reaction?

“Where do I go to get the last two years of my life back?”

Sadly, I don’t have an answer.

This is why obtaining experienced, diligent counsel is incredibly important — without representation from a knowledgeable attorney, the accused’s temporary nightmare could become their reality for many years. The Daniel M. Rosenberg & Associates legal team knows the nuances of criminal proceedings in New Jersey intimately, and we have a reputation for delivering optimal outcomes for our clients. If you or your loved one have been accused of a criminal charge, please call our firm at 609-216-7400 for a free consultation.

A Lawyer’s View on Josh Huff’s Weapons & Drug Charges

Eagles Receiver Josh Huff Faces Weapons, Drug Charges in NJ

Josh Huff of the Philadelphia Eagles made headlines this week when he was arrested in New Jersey for possessing a firearm without a permit. The wide receiver was arrested Nov. 1 in Gloucester City and charged with Unlawful Possession of a Weapon and Disorderly Persons Possession of a Controlled Dangerous Substance (Marijuana, less than 50 grams).

If found guilty of illegally possessing a firearm, Huff will receive a minimum sentence of five years in New Jersey State Prison with a mandatory three-and-a-half-year term of parole ineligibility due to a state law known as the Graves Act.

New Jersey takes firearm charges very seriously and, in this criminal defense attorney’s opinion, so should Huff. New Jersey employs some of the strictest firearms laws in the nation. Many gun owners from other states, such as Pennsylvania, are shocked when they learn about New Jersey’s gun laws.

While most residents are permitted to possess most firearms in their home without a permit of any sort, carrying a firearm outside the home is problematic for several reasons:

  • New Jersey Gun Laws Are Complex — It can be incredibly difficult to navigate New Jersey gun laws. For example, I represented a client who had a permit to carry a firearm in one state and was traveling to another state where he was also legally permitted to carry a firearm. He was arrested and charged, however, because while traveling through New Jersey he secured his firearm in the trunk of his motor vehicle while it was loaded, which is illegal in the Garden State.
  • New Jersey Gun Laws Are Subject to Interpretation — To make matters more complex, New Jersey gun laws can be somewhat vague and therefore allow for inconsistent application of the law. For example, New Jersey law states a person may lawfully travel with a firearm from one location to another as long as they follow carrying laws and firearms are permitted at both the point of departure and the destination, such as from a private home to a gun range. The person may still be arrested for violating carry laws, however, if law enforcement does not believe they are traveling to and from those locations.
  • New Jersey Gun Laws Are Harsh — Due to Directives from the Office of the Attorney General, prosecutors are often unable to negotiate a resolution that is fair and consistent with the interests of justice. Even if a defendant simply possessed a firearm contrary to the specific and nuanced stator requirements, and never used or intended to use the firearm for an illegal purpose, the threat of a prison sentence is very real.

While New Jersey law does contain a legal mechanism to apply for a permit to carry a firearm, these permits are tremendously difficult to obtain. Drawing on personal experience from my years as a Prosecutor who received these applications, I would estimate that the vast majority of the individuals who obtained these permits were armored car drivers.  For individuals employed in other fields, or simply seeking a permit to carry a firearm for their own protection, there is a steep hill to climb.

Given the complexity of the law, and the high stakes associated with a conviction for Unlawful Possession of a Firearm, legal advice and counsel is not just preferable — it is necessary. Attorneys experienced in the intricacies of New Jersey law will know how to advocate the best case for their clients. For instance, recently the courts permitted defendants who negotiate a Graves Act Alternative sentence to argue for a more lenient sentence when they appear before a Judge. Several of my clients have avoided incarceration altogether due to this recent change in the law.

If you are a loved one are facing firearms charges in New Jersey, the criminal defense attorneys with Daniel M. Rosenberg & Associates can help. We are experienced in all facets of New Jersey weapons law and provide sound legal advice and honest and aggressive legal representation.