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.

New Jersey’s Bail Reform: What to Expect in 2017

It’s Coming: New Jersey Bail Reform

New Jersey has been making headlines recently after passing comprehensive bail reform legislation that will change how criminal defendants await their trials. The constitutional amendment, which will go into effect Jan. 1, 2017, allows judges to deny bail to high-risk offenders and release low-risk offenders from jail using a non-monetary system.

The Reform Explained

The bill originated in the Senate and was later amended to also allow for the pre-trial release of low-risk defendants and the establishment of an alternative bail system. In final reading, the bill (S946/A1910) passed the Senate 29-to-5 and the General Assembly 53-to-7 with nine abstentions in the summer of 2014. New Jersey voters enacted the law that autumn by passing — 891,373-to-550,698 — a general election poll question.

Before the amendment, all defendants — regardless of the severity of their accused crimes — were eligible for bail due to a 2007 repeal of the death penalty that nullified the only legal exception.

A significant part of the reform shifts the qualitative elements of bail from money to risk. In the former bail system, how much money a defendant had determined whether or not they would await trial in jail. Under the reform, judges will determine how long a defendant is in jail based on their risk. Risk will be determined based on factors like the severity of the crime, the defendant’s criminal history, if he or she poses a threat to the community if released and the person’s likelihood to hinder the legal process if released.

Low-risk defendants allowed release will complete bail through an alternative system. Examples of the non-monetary bail include remaining in the custody of a court-designated supervisor, maintaining employment, maintaining an educational program and regularly participating in a pre-trial program.

Although jail costs are expected to go down, the state will need to hire more judges and law enforcement officials — an estimated cost increase of more than $20 million — to facilitate the new workload. Court filing fees have already been raised in preparation for the added expense.

Although it won’t be in full-effect until next year, three judicial districts — Passaic County and the Camden and Morris/Sussex districts — will participate in a pilot program of the reform starting in March 2016.

National Bail Reform

On a national scale, bail reform has become a hot topic as increasingly more groups and politicians criticize the cash bail system for how it disproportionately affects the poor and African American populations. The recent high-profile cases of Trayvon Martin, Michael Brown, Eric Garner and Kalief Browder have helped turned the public’s gaze toward injustices in the criminal justice system.

Politicians wary of increasing budget constraints have also been talking of making changes to the costly criminal justice system most of America employs now. New Jersey is one of just a few states including Virginia, Delaware, Colorado, West Virginia and Hawaii spearheading the movement to change the way they approach bail.

Reform Supporters

The old cash bail system has many critics, and consequently many key lawmakers have spoken out in support of the reform. Some of the new law’s biggest praise came from New Jersey Supreme Court Chief Justice Stuart Rabner, who called the legislation the most significant criminal justice reform measure the state has enacted in years, and American Bar Association President and New Jersey attorney Paulette Brown, who said the reform was “fresh thinking” and an example for other states to follow.

The attorneys at Daniel Rosenberg & Associates have supported the bail reform from the beginning; we believe the new system will have a dramatic impact on New Jersey’s criminal justice system.

The vast majority of incarcerated individuals in New Jersey are awaiting trial, not serving a sentence. Many are accused of relatively minor nonviolent crimes and bail is typically set low, however not everyone can afford to pay the amount. This system has disproportionately affected those with limited financial means.

Many who do choose to pay bail do so to avoid spending time in prison, rather than making decisions about whether or not to pursue their constitutional right to trial based on consideration of the evidence. These defendants often feel they are forced to choose between their freedom and going to trial. This isn’t fair or just.

Sources

Bail Reform in New Jersey
Passaic County Courts will be testing grounds for criminal bail reform
New Jersey Bills
Voters Approve Bail Reform Measure
General Public Question 1
NJ Supreme Court Chief Justice
Bail Reform
When Freedom Isn’t Free
There’s Never Been a Better Time for Bail Reform

New Jersey’s New Juvenile Waiver Law: What’s Different?

New Jersey’s New Juvenile Waiver Law: What’s Different?

A significant reform of New Jersey’s juvenile waiver law took effect March 1, 2016, and with it came the opportunity to better protect the children of the Garden State who encounter the criminal justice system. The reform establishes stricter policies surrounding juvenile waivers — which prosecutors may file in a juvenile case to request the defendant be tried as an adult in adult court — including older age restrictions and eliminating solitary confinement as a punishment for minors.

Gov. Chris Christie signed the bill — S2003/A4299 — into law on Aug. 10, 2015.

The difference between how adult criminal courts and juvenile family courts handle cases in New Jersey is dramatic, and the previous law left many minors susceptible to the possibility of being tried and imprisoned as if they were an adult.

The stakes are much higher in adult criminal court. For example, a juvenile in New Jersey who is charged with armed robbery in juvenile court can receive any one of a number of punishments, ranging from probation to a maximum of four years incarceration in a juvenile facility. In adult criminal court, convicted armed robbers may do anywhere between 10 – 20 years in New Jersey State Prison. Juveniles are typically eligible for parole after serving one third of their sentence, while adults are required to serve 85% of their sentence prior to parole eligibility.

Criminal convictions in juvenile court are also kept private, protecting the minor from the many consequences of having a public criminal record. If a juvenile is waived into a adult court, however, this privacy is also waived and their criminal convictions and sentences become public record. In some instances, their criminal public record will follow the juvenile for the rest of their life.

Comparing the old and reformed law side by side, there are many changes that now protect our minors.

Old Waiver Law

  • Prosecutor has 30 days to file for waiver.
  • Juveniles aged 14 and older can be waived to adult criminal court.
  • If a juvenile is convicted of a non-waivable crime following waiver to adult criminal court, the conviction remains an adult conviction.
  • If a juvenile is convicted in adult criminal court, and receives a sentence of incarceration, the juvenile serves that sentence in an adult facility.
  • Juveniles are held in an adult county jail pending the resolution of their matter if they are unable to afford bail.
  • Solitary confinement is an allowable form of punishment in juvenile facilities and detention centers. There is no time limit on solitary confinement.

New Waiver Law

  • Prosecutor has 60 days to file for waiver.
  • Juveniles aged 15 and older can be waived to adult criminal court.
  • If a juvenile is convicted of a non-waivable crime following waiver to adult criminal court, the conviction reverts to a juvenile conviction and the matter is returned to juvenile court.
  • If a juvenile is convicted in adult criminal court, and receives a sentence of incarceration, the juvenile serves that sentence in a juvenile facility, unless the State overcomes that presumption.
  • Juveniles are held in a juvenile facility pending the resolution of their matter if they are unable to afford bail, unless the State overcomes that presumption.
  • Solitary confinement is no longer permitted as a disciplinary measure in juvenile facilities and detention centers. Time limits are now enforced for solitary confinement used for safety and other measures.

This change in the law directly impacts many Burlington and Camden county youths.

Data from the New Jersey Juvenile Justice Commission for July 2016 shows a total of 583 youths — 557 of them boys and 411, or 70.50%, African American — are a part of the juvenile justice system. The largest percentage of these minors — 19.38%, or 113 youths — were sentenced in Camden County. Eleven, or 1.89%, were sentenced in Burlington County.

The juvenile waiver law reform will positively impact these children and our greater community, reducing the disproportionate effects on the black population and stopping the school-to-prison pipeline. Studies show juveniles jailed in age-appropriate facilities are also less likely to experience abuse and die from suicide.

The law and procedure pertaining to an involuntary waiver to adult criminal court is complex and nuanced, and the consequences are serious. But, there are many instances where a juvenile waiver hearing can be used to the juvenile’s advantage and significantly alter the scope and direction of the case. If your child or a loved one is charged with a juvenile offense, the attorneys at Daniel M. Rosenberg & Associates include two former juvenile prosecutors who are experienced and knowledgeable in New Jersey’s rapidly changing legal framework.

Arrested for DWI? Top 10 Things You Should Know

Arrested for DWI in New Jersey? Top 10 Things You Should Know

If you or a loved one has been charged with a DWI (driving while intoxicated), it is important to have a complete and comprehensive understanding of the charges and potential consequences. The legal team at Daniel M. Rosenberg & Associates is experienced, compassionate and aggressive in defending DWI cases. If you or anyone you know has been charged with DWI in New Jersey, the first thing you should do is speak with an attorney to learn your rights and the defenses available to you. At a minimum, here are the top 10 things you should know after you have been arrested for DWI:

1. Know the Basic Terminology. 

There are lots of terms and phrases that you will hear in a DWI case that may be unfamiliar. Here are a few that show up in almost all cases:

BAC — Blood Alcohol Content. This is a number that is used to measure a person’s level of alcohol intoxication.  In New Jersey, BAC at or above .08% is considered per se intoxicated, meaning that you are too intoxicated to operate a motor vehicle, regardless of whether you operated your motor vehicle in a safe manner.

Standardized Field Sobriety Tests — This is also referred to by the acronym SFSTs. This is a battery of tests law enforcement use to measure psycho-physical characteristics classically present in individuals who are intoxicated.  They test the operator’s gross motor skills and ability to concentrate and “multi-task.”  There are three tests typically administered:  The Horizontal Gaze Nystagmus (“HGN”) Test, the Walk and Turn Test and the One-Leg Stand.

Alcotest — New Jersey no longer uses the “breathalyzer” to measure an individual’s BAC. The Alcotest is an incredibly sophisticated machine that is far more accurate and contains measures to ensure proper operation and administration.

2. Fight Back!

Too many people assume they are guilty or have no defenses to the charge. Sure, it’s possible that you may end up pleading guilty and/or going to trial and being found guilty.  That doesn’t mean you should just give up.  There are hundreds of possibilities that have to be eliminated before you get to that point.  Maybe the officer didn’t observe you for 20 minutes before administering the Alcotest.  Maybe the reason the officer pulled you over was invalid.  Maybe the Alcotest wasn’t maintained properly.  Perhaps some evidence was inadvertently lost or destroyed.  There are simply too many questions you need the answer to before you get in front of a judge and plead guilty.  Don’t accept the worst before you know it’s the only option.  Fight back.

3. Get Legal Help.

Personally, I think you should get an attorney for any charge, no matter how minor — there are too many collateral consequences that come with even minor convictions like a speeding ticket. For a DWI, though, there is no question you need an experienced criminal defense lawyer. The law of DWI is extensive and takes years to learn.  It is technical and complex.  Often the devil is in the details, and you need a lawyer who will exploit any mistake to improve your outcome.

4. The Prosecutor Will Not Negotiate With You.

Unlike the vast majority of motor vehicle offenses, municipal court prosecutors are forbidden from negotiating DWI cases. For example, in other speeding violations, the prosecutor may permit you to plead to a lesser ticket as part of the negotiating process (you agree not to force them prove their case, and the prosecutor agrees to reduce charges). In DWI cases, prosecutors are not allowed to negotiate.  You need an attorney who is experienced and knowledgeable in court procedure and the nuanced legal principles of DWI law to avoid the trap of having only two options: pleading or going to trial.

5. You Are an Important Part of the Defense.

Our attorneys tend to be more thorough than some attorneys. As such, we do not simply look at the discovery materials, meet you for the first time in court, and stand next to you while you plead guilty.  You are a critical part of the case. Information you have, even if it seems unimportant, can sometimes make the difference between a good outcome and a great outcome.  I had one client who was charged with DWI and seemed to be doomed to suffer significant penalties.  I reviewed the police reports, dash cam video and Alcotest documents extensively, and saw no technical or procedural errors.  When I sat down to discuss the case and my client’s options, she informed me that she was wearing dentures the night of her arrest, and the officer failed to remove the dentures prior to administering the Alcotest.  This was a clear violation of protocol, and rendered the results of the Alcotest suspect.  As a result the prosecutor was forced to offer an incredibly beneficial resolution.  Without this information from my client, the result would have been significantly worse.

6. Don’t Assume the Worst!

The first thing I do when I meet with my clients is review the worst-case scenario. For a DWI, the worst-case scenario includes a substantial loss of driving privileges, significant fines and (in some cases) jail.  I go over these penalties because I often find clients find it comforting — not knowing what could happen is scarier than knowing. Once we discuss the maximum penalties, we get to work trying to obtain the best possible outcome. Don’t assume that you will get the maximum penalties, or any penalties at all.  Until your attorney has reviewed all the police reports, dash cam video, Alcotest results and other materials, it is too early to predict what will happen with your case. Because of the complex nature of DWI cases, the defenses also tend to be complex.

7. New Jersey Does Not Permit “Work Licenses.”

A DWI conviction in most states requires a loss of license in most instances. If this happens, some states will still permit a defendant to drive to and from work during this period of suspension. This is sometimes called a “work license” or “bread and butter” license.  New Jersey does not allow this.  If you lose your license for seven months, you are not permitted to drive at all during that time period.

8. DWI Is Not a Crime.

In New Jersey, a ticket for Driving While Intoxicated (DWI) is just that: a motor vehicle ticket. In some states, such as Pennsylvania, a DWI is a criminal charge that will appear on a criminal background check.  A DWI in New Jersey carries with it significant penalties, and you must take it seriously, but it is not a criminal offense.  Therefore, it will not be on your criminal record.  It will, however, be on your NJ Driving Abstract and cannot be expunged.

9. The Police Officer Does Not Make Any Final Decisions.

It is not uncommon for my clients to tell me in our first meeting that they were polite to the officer, and that the officer told them he would “do them a favor” when the case comes to court. While many officers can be well intentioned and sincere when they say this, they don’t have the authority to resolve cases.  Only the prosecutor can extend a plea offer or sentencing recommendation, unless the judge permits otherwise, which is rare.

10. Be Careful What You Read on the Internet.

There are a lot of well-meaning people who post on message boards and other venues intending to inform other people on DWI law. This poses some problems, however. First, most people who do this take one case (sometimes their own) and assume that what happened in that one case applies to all cases.  This is false because every case is different, every cop is different and every Municipal Court is different.  Second, the law of DWI is very complicated.  Even lawyers who have litigated DWI cases for decades will often refer discovery materials out for an expert to review; usually a retired State Police Trooper with expertise in the technical requirements of the Alcotest and its administration.  Whatever you read on the Internet should be taken with caution.  Said differently, consider the source.

 

If you or a loved one received a DWI charge while driving in New Jersey, you should immediately speak with an attorney experienced in successfully defending DWI cases. Call Daniel M. Rosenberg & Associates today for a free, confidential consultation at (609) 216-7400.

The Five-Year Pathway Expungement

The “Five-Year Pathway” Expungement

In New Jersey, arrests and convictions don’t have to be the end of a deserving person’s livelihood — it is possible for an ex-convict to have their record cleared, or expunged.

Only certain charges are eligible for expungement, such as felonies (called “crimes” in New Jersey), misdemeanors (called “offenses” in New Jersey) and local municipal ordinances. The principle behind the entire concept of expungement in New Jersey is to provide relief to the one-time offender who has otherwise led an upstanding life before and after their conviction.

If an expungement is granted, the court will order all records of your arrest, conviction and sentence to be deleted. Your criminal history will be cleansed of your prior conviction.

To be eligible to petition for an expungement, a person must wait the designated time period, which is defined by law as 10 years, five years, two years or six months in the Garden State. The time period depends on the charge you are seeking to have expunged. However, an amendment in 2010 allows this time period to be relaxed in certain circumstances.

The Amendment

In 2010, the New Jersey Legislature enacted an amendment to the existing statute permitting expungement of certain criminal convictions, codified at N.J.S.A. 2C:52-2.

Under the old rule, expungement of certain criminal (felony) convictions was permitted after a 10 year waiting period. However, the 2C:52-2(a)(2) amendment created what is commonly known as a “five-year pathway” or “early pathway” to expungement.

To be eligible for the five-year pathway, a petitioner must demonstrate the following:

  • Five years have passed since the date of conviction, release from incarceration, completion of probation or payment of fines (whichever applies and occurs latest)
  • He or she has not been convicted of a crime, disorderly persons offense or petty disorderly persons offense since the time of the criminal conviction
  • To grant this expungement would be in the public interest, considering the nature of the offense and the petitioner’s character and conduct since conviction

While the first two requirements are reasonably straightforward, the New Jersey Supreme Court helped to clarify how petitioners can demonstrate the third requirement after ruling on Ronald C. Kollman Jr.’s petition for expungement, 210 N.J. 557, in 2012.

In the court’s unanimous opinion, Chief Justice Stuart Rabner wrote “defendants seeking expungement have the burden of proof to demonstrate why their case warrants relief under the statute’s public-interest prong,” rather than placing the burden of proof on the state to show why the petitioner does not warrant the expungement.

This burden of proof can vary. In Kollman’s case, his proof included earning a college degree while working full-time, running a charitable program with the Boy Scouts of America, and submitting 21 letters from a variety of different people and organizations vouching for his character and personal growth.

In addition, he showed the court he was denied opportunities to positively impact his community — coaching wrestling, teaching a boating and safety certificate class and volunteering with Big Brothers Big Sisters — because of his criminal record.

Providing this proof is essential to bolster a petitioner’s five-year pathway claim because it demonstrates a concrete reason why this relief is needed. Actively seeking employment is an excellent example of this, especially considering the five-year pathway was created with the express purpose of promoting employability.

If a petitioner can also prove their existing criminal conviction prohibits them from being accepted to desired jobs, educational programs or volunteer organizations, a judge may be even more inclined to rule in their favor.

Providing this information in court serves two complementary purposes:

  • It shows the court why the petitioner needs the benefit of the five-year pathway
  • It serves as circumstantial evidence of the petitioner’s rehabilitation, illustrating how they are hoping to contribute to society rather than divert to non-productive criminal activity

If you or someone you know is seeking the benefit of an expungement, Daniel M. Rosenberg & Associates can help. As the lead attorney to handle expungements at our firm, I am well versed on all New Jersey expungement laws, amendments and precedent-setting cases. If you have questions about expungement, I can be reached at nrotsides@danielmrosenberg.com or (609) 216-7400.

 

Sources

https://www.lsnj.org/NewsAnnouncements/A12610.pdf

Rabner, Stuart J. “In re Ronald C. Kollman Jr. Petition for Expungement.” Legal Services of New Jersey (LSNJ). Legal Services of New Jersey, 9 July 2012. Web. 18 Apr. 2016.

The People v. O.J. Simpson: True or False?

The People v. O.J. Simpson: True or False?

The infamous O.J. Simpson trial may have been all America wanted to watch on TV in 1995, but it captured the eyes of American viewers again earlier this year, from Feb. 2–April 5, when FX launched “The People v. O.J. Simpson.” The show is the first season of its new series, American Crime Story, and features stars like Sarah Paulson as prosecutor Marcia Clark, John Travolta as Robert Shapiro and Cuba Gooding Jr. as The Juice himself.

It doesn’t matter that the ex-pro football player is a household name in this country, or we owe “Keeping Up with The Kardashians” and other pop culture references to his double homicide trial — just as when it was first aired, the O.J. Simpson trial has continued to captivate audiences. With 5.1 million viewers of the premier, it is the most-watched freshman show in the network’s history. It rated 2.0, the network’s best in more than 10 years, has a score of 90 on Metacritic and 97 on Rotten Tomatoes.

For those who watched the real trial in the 90s, the show is a chance to relive it through the eyes of the attorneys. For younger generations, who were too young to remember or weren’t born yet, the series is a chance to experience the trial first-hand, taking in all the twists and turns along the way.

But the twenty-year retrospective still raises some questions. Is that really how trials are handled? Do they really take that long? What is fact, and what is fiction?

Here to lend his legal expertise and answer “true or false” is “The People v. O.J. Simpson” fan and Daniel M. Rosenberg & Associate’s own Robert Perry.

Is it legal to select jury members based on demographics like race and gender? 

RP: FALSE!! It is illegal in New Jersey for any potential juror to be dismissed solely due to their religious practices, race, color ancestry, national origin or sex.  Our firm has closely followed this issue and has published material on new developments in the law on our website. 

This prohibition has been recognized by both the United States Supreme Court and the New Jersey Supreme Court as unconstitutional. 

Selecting a jury that benefits your client is never an exact science.  In reality, the information the lawyers are provided on potential jurors is fairly limited.  It takes years and years of experience and practice to acquire a sense of what an “ideal” juror is for your specific case.  This is why experience matters when selecting an attorney.

O.J.’s attorneys seem to visit him constantly in jail. Is that something real attorneys do?

RP: True. Good attorneys do!  The attorney-client relationship is critical in any criminal case. 

First of all, one of the most important roles an attorney plays is that of an advisor.  Our clients always make the most important decision (whether to plead guilty or go to trial).  It is impossible for our client to make that decision if he or she is not informed on all the facts of the case, relevant legal principles and our assessment of their matter.  This process is a collaboration between the attorney and client.  It is truly a team effort that is just as important, if not more important, if the client is incarcerated.

Second, visiting a client in jail calms their nerves. When a person is charged with a crime and incarcerated prior to trial, they have gone through a nightmare.  Their name and reputation have been damaged and they have been denied their freedom.  This is a frightening, uncertain and frustrating experience.  They need to know there is an attorney fighting for them. 

Finally, I can’t do my job as a defense attorney without communicating with my client.  My client usually knows information that is critical to the defense, and if I don’t work with my client I’m not doing my job.  Reviewing the case with my client in jail is an important part of trial preparation. 

Is it rare to use DNA evidence in court?

RP: True and false. It’s not rare anymore, but in the 1990s DNA was just starting to be used. The O.J. Simpson case certainly brought DNA evidence out of the shadows as a tool of the prosecution.  Today, DNA evidence is actually quite common.  As a former prosecutor, I litigated many, many cases wherein DNA was the primary evidence of a defendant’s guilt.  

It is important to note that DNA evidence is highly complex, and the accuracy of a forensic scientist’s opinion depends upon a number of factors, not limited to whether law enforcement followed very specific protocol when collecting the evidence.  Moreover, a common misconception is that a prosecutor can say DNA is a “match.”  DNA evidence is largely a measure of statistical probabilities.  Because an attorney must understand the science and math behind DNA evidence in order to meaningfully question the evidence, it is important that they have this substantial experience in this specific field.

Is evidence manipulation common, like when evidence was left in the trunk of a detective’s car overnight and a defense attorney tried on the gloves during a recess?

RP: It depends. Good question! I suppose there are two types of “evidence manipulation” — those that occur deliberately and those that occur inadvertently. Certainly there are many instances of both. 

While there are obviously instances of intentional police misconduct, I personally believe that this is rare and the vast majority of law enforcement officers are professional and well intentioned. However, even if they have good intentions, it’s important officers follow appropriate policies and procedures at all times. Failure to do so can result in the contamination or elimination of evidence. 

The devil is often in the details in a criminal matter, and we make sure that no stone goes unturned in reviewing all the evidence. We are moving towards an age where all officers wear body cameras, which are a terrific tool for discovering the truth.

Is it unusual for trials to take more than eight months to hear in court?

RP: True. Even the most complex of criminal cases can typically be tried in a month or two at most. 

The O.J. Simpson trial was an exception — a “perfect storm,” if you will. There was a mountain of evidence and witnesses produced by the prosecution, an experienced and detail-oriented defense team and possibly the most intense media coverage of a trial in the history of our country. 

While there have been some cases in New Jersey that have taken substantial time to resolve, they are certainly the exception and not the rule.

Would the O.J. Simpson case have ended differently if it was tried in New Jersey?

RP: It depends. That’s a good question, but ultimately an impossible one to answer. As I always tell my clients, whenever a case goes to trial the final decision is made by 12 people, and there is no such thing as certainty when that happens. 

There were many factors that led to the verdict in the O.J. Simpson case, and I suspect a person’s opinion on the case largely depends upon their life experience. I don’t know if a New Jersey jury would have decided the case differently.  

I believe that the process matters more than the outcome of any individual case. O.J. Simpson received constitutionally guaranteed due process and more than capable legal representation. Our criminal justice system ultimately leaves the issue of guilt or innocence to citizens. We all hope that they come to the correct decision.