A.     Standing and Out-of-State Registrants

In Matter of JR, decided earlier this year, the registrant was convicted in New Jersey in 1993 of child endangerment, sentenced to a 5-year probationary term, and required to register pursuant to Megan’s Law.  He relocated to Montana in or around 2021.  The issue was whether JR had standing to seek termination of his registration obligation in the New Jersey Superior Court because he currently lived in Montana.  The trial court denied JR’s motion because he lacked standing to seek relief in New Jersey because neither he nor his registration obligation obligation had any connection to our State, and the Appellate Division affirmed.

In discussing the trial court’s findings and conclusions, the Appellate Division noted that “[i]n order to possess standing, the plaintiff must have a sufficient stake in the outcome of the litigation, a real adverseness with respect to the subject matter, and there must be a substantial likelihood that the plaintiff will suffer harm in the event of an unfavorable decision.”  (Citation omitted.)  JR lacked a sufficient connection to New Jersey that would case him to suffer harm in New Jersey in the event of a denial of the relief sought because he was required to register in Montana.  He did not live, work, or attend school, in New Jersey.  Because he would not suffer harm in New Jersey as a result of our Superior Court’s possible denial of his motion, both the trial court and the Appellate Division found that he lacked standing to bring his motion in our Superior Court.  Put somewhat differently, JR lacked standing to seek termination of his registration in the New Jersey Superior Court unless he would be harmed in New Jersey as a result of our trial court’s denial of his motion.  At the time he made his motion, he had no registration obligation in New Jersey; rather, his entire registration obligation (indeed, his entire life) was Montana-based.  Thus, he would not be harmed in New Jersey by our trial court’s denial of his motion.

In order to get around the full impact of this decision, a registrant who was convicted in New Jersey and now lives in another state should have some connection to New Jersey before making their motion in our Superior Court.  Further, the registrant should be able to show that they will suffer harm in New Jersey stemming from or relating to this connection if the trial court denies their termination motion.  Such a showing can establish the standing JR lacked.  Additionally, and as the Appellate Division noted, the state of residence may, for example, require the registrant to terminate their registration obligation in New Jersey before the former will consider any motion filed in its court.  In such a case, the registrant should be able to move for termination in New Jersey prior to seeking the same relief in their State of residence.  Registrants who were convicted in New Jersey but now live in another state are, therefore, not necessarily barred from seeking relief here.

B.     The Public Safety Prong

In order to be removed from Megan’s Law or CSL/PSL, a registrant must show that they are not likely to pose a threat to community safety.   The Appellate Division discussed this requirement in Matter of SO and Matter of GN, also decided earlier this year.  The trial court granted the respective motions of these registrants, and the State appealed.  The Appellate Division found that the trial court’s decision was based largely on psychological evaluations that concluded that neither registrant was likely to sexually reoffend, but further noted that both registrants had fairly extensive records for both criminal and non-criminal offenses (e.g., DWI).  One of the registrants was classified in Tier Two, and both had domestic violence histories.  The psychologists who prepared the evaluations that accompanied their respective motions concluded that neither registrant was at risk of reoffending sexually, but the Court found that the public safety prong as set forth in both the Megan’s Law and CSL/PSL statutes required a more extensive showing.  The issue was not only whether the registrants presented a risk of sexually reoffending, but rather whether they presented a risk of reoffending in any way that could harm the community.  The Orders granting each motion were, therefore, terminated, and the matters were remanded to the trial court for further consideration.

Most psychological evaluations submitted in support of a termination motion focus on risk of sexually reoffending.  In light of this decision, however, the evaluations must be broader.  They cannot be based just on tests that measure the risk of sexual reoffending (such the the STATIC-99, the STABLE-2007 or the ACUTE-2007).  To address the concerns in this opinion, the evaluations should also include testing designed to measure the future risk of engaging in criminal and/or violent activity generally.  Such psychological tests exist, and should be employed prospectively.  The psychologist should also consider the registrant’s complete post-sex offense conviction history including, without limitation, any new offenses and any therapeutic programs the registrant completed (and related reports, if available).  Educational achievements, employment history, personal relationships and community involvement should also be discussed.  As per the Court’s reasoning, the registrant’s RRAS score should also be considered and discussed in some detail.  In essence, the Appellate Division is saying that more than just an assessment of sexually reoffending is required, and the evaluation has to include all of this.

These decisions present new hurdles to termination, but they are not necessarily insurmountable.  A more complete set of moving papers supported, in part, by a more thorough psychological evaluation, should address many of these concerns.

James S. Friedman LLC represents registrants who seek to terminate their Megan’s Law registration and Community Supervision for Life/Parole Supervision for Life obligations.  If you are seeking to terminate these obligations in any New Jersey county, contact us to discuss your case and your options.

The post Recent Decisions May Make it Tougher (But Not Impossible) to Get Off Megan’s Law appeared first on New Jersey Criminal Defense Attorney Blog.

An increasing number of child pornography images and videos created with Artificial Intelligence are appearing online.  These images and videos may not depict real children, but appear to because they were created with AI tools that are very powerful and increasingly sophisticated.  We are now at a point where the AI-generated images are indistinguishable from real ones.  Gone are the days when a hand had too many fingers, a background was blurry, or the transition from frame to frame was not smooth.  Moreover, some of the new material contains a mix of both real and AI-generated child participants.  Viewers of such material exchange it in internet forums, and via social media.  Additionally, not all of the material is posted purely for viewing.  There have apparently been incidents of children being blackmailed after having their facial images lifted from an online school yearbook, or other innocuous source.

Further, both the sophistication and the volume of images is striking.  The National Center for Missing and Exploited Children (“NCMEC”), reports that it received approximately 485,000 reports of AI-generated child pornography in the first half of this year, compared with approximately 67,000 for all of 2024.  Amazon, which has an AI tool, reported 380,000 child pornography images and videos in the first half of 2025, whereas OpenAI reported 75,000 incidents.  The British Internet Watch Foundation reports having identified almost 1,300 child pornography videos this year globally, compared to 2 in the first have of 2024.  An increasing number of tech companies with AI tools are reporting these online discoveries to NCMEC which, in turn, alerts law enforcement.  Some of them also have screening tools, as well as warnings that are posted to their users.

At this juncture, the law in this area is unsettled because it has not yet caught up to the technology.  Law enforcement has taken the position that federal child pornography laws cover materials generated by AI, even if they do not contain any images of real children.  State legislators are also working to criminalize AI-generated child pornography, with between 30 and 40 such statutes enacted in the recent past.  However, images generated entirely by AI still present legal challenges.  A defendant in a case in Wisconsin Federal District Court challenged one of the charges against him on First Amendment grounds.  The Court ruled that “the First Amendment generally protects the right to possess obscene material in the home [if it is not] actual child pornography.”  At this juncture, the trial in that case is proceeding based on other charges, which relate to producing and distributing 13,000 images using an image generator.  The defendant attempted to share the images with minor via social media, and was reported.

Federal law enforcement has made its position on this issue very clear.  The director of the Justice Department’s Criminal Division recently stated that DOJ “views all forms of AI-generated [child pornography] as a serious and emerging threat.”  Even though the law is unsettled because of the evolving technology, it is clear that these cases will be prosecuted aggressively.

James S. Friedman, Esq., a criminal defense attorney based in New Brunswick, New Jersey, represents individuals charged with possession or distribution of child pornography in all State and Federal courts in New Jersey.  If you have a child pornography charge in any court in New Jersey, contact Mr. Friedman to discuss your case, and learn about your options.

The post The Impact of Artificial Intelligence on Child Pornography Cases appeared first on New Jersey Criminal Defense Attorney Blog.

Our Appellate Division recently considered the limits of Zoom proceedings in State v. Lansing (A-1592-23, 10/3/24).  There, the defendant moved for an order allowing his expert to testify remotely at a pre-trial evidentiary hearing, and at trial.  The subject of the testimony was photogrammetry, which is a scientific field involving the use of photography in surveying and mapping to measure distances between objects.  The experts were also expected to testify concerning forensic video analysis, bullet trajectory analysis, and related subjects.  The testimony was obviously highly technical, and was very significant since it went to the admissibility of the State’s evidence at trial and the identity of the defendant as the perpetrator of the underlying offenses.  Prior to being retained, the defense expert informed counsel that he would have to testify remotely at any pre-trial hearings and/or at trial, both because of personal health issues and the fact that he was the primary caregiver for his seriously ill spouse.  The expert lived in New York State, approximately 1 1/2 hours from Court.  The State refused to consent and opposed the defendant’s motion.

The Trial Court found that the expert testimony at issue went to the heart of the case since it concerned issues of admissibility and identification evidence.  The testimony would also have a significant impact on the case since it went directly to whether or not the State’s expert testimony was admissible at trial, as well as its reliability.  Additionally, the testimony would be very technical and heavily disputed.  As such, the credibility of the witnesses and an assessment of their knowledge, skill and experience would be at issue, and virtual testimony would make such a determination very difficult both for a judge acting as a factfinder at a pretrial hearing and a jury of lay persons at trial.  The trial court also anticipated extensive cross-examination, which could be hindered by a remote appearance.  Further, the trial court found that an in-person appearance would not result in an unreasonable financial burden or any undue delay since the defense expert lived relatively close to the courthouse.  Moreover, the defense expert informed counsel that his testimony would have to be remote prior to his retention in the case.  Thus, counsel could not claim that they were surprised by this issue.  Finally, any health-related concerns that the defense expert had could be addressed by reasonable accommodations such as masking, clear screens and social distancing.  Against this backdrop, the trial court denied the defense motion to allow its expert to testify remotely.

The Appellate Division affirmed, noting that the trial court’s analysis properly employed the following factors developed through prior caselaw that are used to analyze requests to allow remote testimony: (1) the witness’s importance to the proceedings; (2) the severity of the factual dispute to which the witness will testify; (3) whether the factfinder is a judge or jury; (4) the cost of requiring an in-person appearance relative to allowing testimony in another format; (5) the delay caused by insisting on an in-person appearance relative to the speed and convenience of allowing the witness to testify in another format; (6) whether the witness’s inability to be present was forseeable; and (7) the witness’s difficulty in appearing in-person.  In affirming, the Appellate Division found that the trial court correctly employed these factors in its analysis of defense counsel’s request for remote testimony.

The message is clear – Zoom and Teams are great tools that can make court proceedings more efficient, but there are times when in-person testimony is critical and cannot be dispensed with.

James S. Friedman is a New Jersey criminal defense attorney based in New Brunswick.  Mr. Friedman represents individuals with criminal charges in the New Jersey Superior Court in all counties, all New Jersey municipal courts, and in all three New Jersey vicinages of the the United States District Court.  If you have charges in any of these courts, call Mr. Friedman to discuss your case and your options.

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The Extreme Risk Protective Order Act of 2018 (the “ERPO”) allows for the confiscation of firearms and permits in certain circumstances.  This law is modeled on the procedure used to confiscate firearms in domestic violence situations.  An ERPO petition can be filed by a current or former spouse, domestic partner or civil union partner; a current or former household member; a co-parent or guardian of a child-in-common; anyone expecting a child with the gun owner; a current or former dating partner; or a member of law enforcement.   The petition needs to state why the gun owner is a threat to others or themself.  It includes questions concerning 15 risk factors.  The petition must also identify the guns at issue, and state where they are located.  The petition is filed in the Superior Court of the gun owner’s county of residence.

After filing, the person who filed the petition will be interviewed by court staff.  The first hearing should be scheduled promptly, and may be heard by either a Superior Court judge or a municipal court judge.  The purpose of the first hearing is to determine whether there exists “good cause” for removing the firearms.  If the judge determines that good cause exists, they will issue a temporary firearm removal order.    If the judge conducting the hearing was a municipal court judge who denied the petition, the person who filed the petition can request an immediate appeal with an on-call Superior Court judge.  If a Superior Court judge denies the request, the filer can then appeal to the Appellate Division of the Superior Court.

A final hearing should be scheduled within 10 days of the date the petition is filed.  Both the filer and the gun owner can be represented by private counsel (ERPO petitions do not qualify for public defender representation).  The gun owner should receive a copy of the petition, and should be granted time to prepare their defense.  The gun owner can also request an expedited hearing.  During the final hearing, the gun owner can testify in their own behalf, present witnesses, submit relevant documents, cross-examine witnesses, and present other relevant information.

If the court finds that extreme risk has been established by a preponderance of the evidence (the lowest burden of proof recognized by law), the gun owner will be ordered to surrender their firearms, ammunition and permits to law enforcement.  The final order will provide that the gun owner cannot receive, purchase or use firearms.  The court can issue a search warrant if there is probable cause to believe that the gun owner still has firearms.  The final order is permanent, or until it is vacated by another court order.  Either party can seek to have the final order vacated, but the application must state why the person who had their weapons and documentation confiscated no longer presents a risk, and may have to be supported by documentation establishing the absence of any risk.

New Jersey has some of the toughest gun laws in the country.  Gun owners who have been granted the privilege of weapons ownership need to be aware of laws and procedures that could result in the loss of their weapons and permits.  Once these things have been taken away, getting them back can be difficult.

James S. Friedman, Esq., is an attorney in New Brunswick, New Jersey.  Mr. Friedman represents individuals who seek to appeal the denial of a gun permit application, as well as gun owners who face weapons confiscation because of a temporary or final restraining order, or ERPO order.  If you have been denied a gun permit or face weapons confiscation, contact Mr. Friedman immediately.

The post The Extreme Risk Protective Order Act and Keeping Your Firearms appeared first on New Jersey Criminal Defense Attorney Blog.

First, an expungement is a sometimes thought of as a “sealing” of a record.  This is not technically correct.  Assuming an expungement application is granted, the clerk of the court will remove the records from the court file and archive them in a different location.  The records still exist, but are no longer located at the court.  Thus, if a private employer calls to do a background check, they will be told that the court has no record of criminal activity for that person – the court has no record because the record is no longer onsite.  The record has, however, not been destroyed and can still come to light in certain situations other than those involving private employers.  One of the most common is in an application for a gun permit.  Expunging a criminal record may increase the likelihood that it will not impede the issuance of a gun permit; however, the local police department will still learn of the expunged record when it reviews the application.  (While it is true that the current form of gun permit application asks an applicant to disclose prior cases that have not been expunged, the police will still learn of the expunged case during the review process.)  The same will probably be true of most State-issued licenses.    Accordingly, the best course of action for someone applying for a State-issued license may be to disclose the prior record if specifically asked about it, regardless of the fact that the order granting the expungement allows the applicant to say they have no criminal record.  Questions concerning specific licenses should be directed to a knowledgeable attorney.

The key to the expungement process is notice.  After the application is filed with the court, the court will issue an order setting a hearing date.  Prior to that date, the application must be sent by certified mail to various law enforcement agencies, who then have the opportunity to object to the expungement.  The court will hold a hearing on the hearing date if an objection is filed.  Barring any objection, the expungement should be granted.  Once granted, the order, as entered by the court, is then sent by certified mail to the same law enforcement agencies which will, in turn, update their records concerning the expunged matter.

Generally speaking, an applicant must wait five years to expunge a criminal record.  This time period starts to run from the date of the conviction (sentencing date); the date when all fines were paid; the date when probation was completed; or the date of release from incarceration, whichever is later.  However, it may be possible to seek an expungement for an indictable offense after at least four but less than five years, or a non-indictable offense after at least three but less than five years, if the applicant has no new convictions, all fines have been paid, and the court finds in its discretion that compelling circumstances exist to grant an early expungement.  Other situations in which an early expungement may be sought are arrests not resulting in conviction, or a dismissal of the case after successful completion of the Pre-Trial Intervention program.

Special rules apply to applications that seek to expunge more than one offense record.  These rules can be complicated, and are beyond the scope of this article.  Also, not every offense can be expunged.  There is a list of offenses in the expungement statute that are not subject to expungement.  A New Jersey expungement attorney should be consulted about specific situations involving multiple offenses or offenses that may not be subject to expungement.

Having a criminal record is never helpful, regardless of the underlying offense, the circumstances that gave rise to the case, or the age of the conviction.  Anyone with a criminal record who can expunge it should do so.  Some jurisdictions will issue certificates of good conduct or certificates of relief from disability (the latter restores certain political and civil rights that are lost upon being convicted of a felony).  These are not, and should not be confused with, expungements.  If you have a New Jersey criminal record and are otherwise eligible, take advantage of this procedure.  You’ll be glad you did.

James S. Friedman, Esq., is a criminal defense attorney based in New Brunswick, New Jersey.  Mr. Friedman represents criminal defendants in the New Jersey Superior Court in all counties, the United States District Court in Newark, Trenton and Camden, and all New Jersey municipal courts.  If you are charged with an offense in any of these courts, call Mr. Friedman to learn about your options and plan your defense.   

The post Expungement Basics appeared first on New Jersey Criminal Defense Attorney Blog.

When he was fifteen years old in 1999, J.A. was adjudicated delinquent of aggravated sexual assault and endangering the welfare of a child, and was then required to register pursuant to Megan’s Law.  In 2000 and 2001, J.A., while still a juvenile, J..A. was adjudicated delinquent of receiving stolen property and second-degree robbery, respectively.  He served four years at a juvenile facility for the robbery charge, was released in 2004, and remained offense-free thereafter.  Fifteen years later, he applied to terminate his Megan’s Law registration obligation, but was denied because the trial court found that he did not remain offense-free after his original juvenile adjudication, which the trial court viewed as a conviction.  The Appellate Division affirmed.

Everyone agreed that J.A. was not a danger to the community, and therefore satisfied the second prong of the Megan’s Law removal test.  The issue was whether or not the original juvenile adjudication that led to registration was a “conviction” for Megan’s Law purposes, and the Supreme Court found that it was not.  Thus, because J.A. was not “convicted” of an offense in 1999, his subsequent juvenile adjudications could not bar removal.

On the same day, the Supreme Court issued Matter of R.H., which contains a more elaborate discussion of these issues.  RH and another registrant, T.L., were both adjudicated delinquent as juveniles of sex offenses and required to register.  R.H. moved to terminate his registration obligation prior to the expiration of the 15-year period, but was denied for that reason.  T.L. was convicted of a petty disorderly persons offense while he was on Megan’s, and his removal motion was denied because of this conviction.  As to both registrants, the Court held that the  minimum 15-year offense-free period applies to those prosecuted as adults and convicted of one of the sex offenses listed in the relevant statute, but not to registrants who were originally required to register because of a juvenile adjudication from the Family Court.  Because R.H. and T.L. were both required to register because of juvenile adjudications as opposed to adult convictions, the 15-year offense-free prong of the Megan’s test did not apply to them.  Thus, R.H. did not have wait 15 years to apply for removal, and T.L. could not be barred from removal because of a subsequent conviction.  The Court stressed, however, that both R.H. and T.L. still had to demonstrate that they did not present any danger to the community (the second prong of the Megan’s test) before a removal motion could be granted.  However, it is clear that registrants whose obligations stem from a juvenile adjudication and who do not have any other issues that may bar relief can apply for removal before reaching age 18.

A somewhat similar issue arises in the context of parole violations.  An applicant for removal from CSL/PSL must show that they have not committed a crime for fifteen years following their last conviction.  However, many such individuals have been found guilty of violating the terms and conditions of their parole.  Parole violations can be handled in one of two ways.  They can be disposed of administratively through a parole board hearing process, or they can be formally charged as new criminal offenses with the case being heard in the Superior Court.  The difference is crucial since, under current law, the finding of a violation as a result of the administrative procedure is not considered a new offense or conviction, whereas a finding of guilt in a Superior Court proceeding is a new offense/conviction which bars relief from Megan’s registration, and re-starts the fifteen-year period that must transpire before the defendant can seek termination of their supervision obligations.  Most parole violations are handled administratively, and therefore are not new offenses or convictions that bar relief.

However, multiple parole violations, even if handled administratively, can still pose problems and issues barring termination of CSL/PSL obligations.  In addition to having fifteen “clean” years, removal applicants must still show that they are not a danger to the community.  A series of parole violations – particularly if they are for the same type of conduct that led to the original conviction – will undoubtedly raise questions concerning whether the defendant has satisfied this prong of the removal test.  Defendants typically show that they are not a threat to the community by submitting a psychological evaluation with their moving papers which concludes that they were at low risk or very low risk of re-offending.  However, even if the psychological evaluation so concludes, a prosecutor can still challenge the removal motion based on the number and nature of the violations, and a judge can use them as a basis for finding that the defendant is dangerous.  This can lead to an evidentiary hearing based on the motion, or a denial of the relief sought.  An experienced Megan’s Law or parole supervision for life attorney will know how to respond effectively to such issues.

James S. Friedman, Esq., is a Megan’s Law attorney based in New Brunswick, New Jersey.  Mr. Friedman represents defendants seeking to terminate their Megan’s Law and CSL/PSL obligations in the Superior Court in all New Jersey counties.  If you are on Megan’s Law and CSL or PSL and want to get off, contact Mr. Friedman immediately.

The post Matter of RH and Matter of JA – A Juvenile Adjudication is Not a Conviction for Purposes of Megan’s Law Removal appeared first on New Jersey Criminal Defense Attorney Blog.

Field Sobriety Tests – These include a series of physical tests that an arresting officer will administer at the scene.  They include asking the driver to stand and touch their nose; walk on a straight line with the toe of one foot touching the heel of the other, then turning and walking again in a straight line in the same manner; or standing on one leg for a period of time.  The physical movements in each of these tests are actually more complicated that those described here.  Drivers should note, however, that these tests are administered in virtually every DWI traffic stop.  The manner in which these tests were given may be challenged depending upon the terrain at the test site, any physical disabilities the driver may have had at the time, the manner in which the officer administered the tests including, without limitation, the nature of the instructions given to the driver, and other factors.  Videos taken with a body camera or dash-mounted camera should be produced with the discovery so defense counsel can determine if there were any test-related flaws in the State’s case.

Breathalyzer – This is probably the best known test.  It is administered at a police station, typically after field sobriety tests have been administered at the scene and the driver has been arrested for suspected DWI based upon their failure to complete the field sobriety tests in an acceptable manner.  The driver will be instructed to blow into a tube and the breathalyzer machine will take a reading of their blood alcohol level based upon their breath.  The breathalyzer may be subject to attack on several fronts.  The officer administering the tests must be qualified to do so, and must be able to show that their qualifications are supported and documented by current training.  The driver must sit for a period of time to allow stomach contents to settle before the test is administered.  The breathalyzer machine must be in good working order, and the chemicals inserted into the machine for testing purposes must be of relatively recent vintage.  In addition to the testing officer’s current credentials, the State must provide documentation concerning the machine’s functioning and repair history, and the age of the chemicals used, as part of discovery.

Blood Draw – Depending upon the circumstances, a breathalyzer may not be possible.  In such cases, the officer may apply for a warrant to take a blood sample from the driver, and the blood can then be tested for blood alcohol content.  The State must provide a copy of the warrant, as well as documentation concerning chain of custody of the blood sample and test results, with the discovery.  The blood sample may be challenged by defense counsel if there was a problem with the testing procedure, or with the procedure used to obtain the warrant.

Drug Recognition Expert – A drug recognition expert (“DRE”) is usually an officer who has taken special training to examine and evaluate a driver to determine if they were driving while impaired by substances that cannot be detected by roadside tests, breathalyzers of blood draws.  Approximately one year ago, the New Jersey Supreme Court decided that DRE testimony is sufficiently reliable to be used as evidence in a DWI case, but limited the use of a DRE’s testimony because of concerns over the methodology used by these experts.  Probably the most significant limitation is that a DRE’s testimony cannot, by itself, be used to determine a driver’s guilt.

It is important to emphasize that there are ways to attack to validity of each of these testing methods.  A skilled DWI attorney will know how to do so, thereby weakening the State’s case and strengthening their client’s position.  Defense counsel will frequently retain an expert to review the testing methods and prepare a report attacking their validity.

DWIs can be high-stakes cases.  Penalties can include license suspension, the requirement of driving for a period of time with an ignition interlock device (driver must blow into it before the car will start), significant monetary penalties and, occasionally, jailtime.  Penalties increase depending on whether the underlying matter is a first, second or third offense.  These cases can also impinge upon someone’s ability to operate a motor vehicle, which is basic to life in New Jersey.

Criminal defense attorney James S. Friedman, Esq., represents defendants in DWI/DUI matters in municipal courts throughout New Jersey.  If you have been charged with DWI/DUI, contact Mr. Friedman to discuss your case and plan your defense.

The post Multiple Ways for the State to Prove DWI – Drivers Beware appeared first on New Jersey Criminal Defense Attorney Blog.

The defendant moved before the trial court to suppress the evidence recovered from the warrantless search of the suitcase.  The trial court granted the motion, finding that the defendant did not run from the police because he wanted to discard the suitcase or relinquish his interest in it.  That court also rejected the State’s argument that the search incident to arrest exception applied.  The Appellate Division reversed, finding that the Defendant had abandoned the suitcase.

The Supreme Court affirmed the Appellate Division’s decision, noting that a defendant has no right to challenge the search or seizure of abandoned property.  The State must prove by a preponderance of the evidence that the subject property was, in fact, abandoned.  In the matter at bar, the defense was unable to confirm Spoon’s identity, or to even demonstrate that he really existed.  If Spoon did exist, he did not yet have possession of the suitcase when the police searched it.  Further, the Defendant’s act of fleeing to avoid a lawful arrest in a public place demonstrated his intention to place as much distance as possible between himself and the property he left behind, e.g., the suitcase.  He ran in a heavily trafficked area on the sidewalk outside of Newark Penn Station with no indication that he intended to return.  As such, he abandoned the suitcase in a public place.  Finally, the police were not obligated to question everyone at or near a major transportation hub to determine who, if anyone, may have had a possessory interest in a suitcase that was deliberately left behind in a public place.  Against this backdrop, the Court found that the Defendant lacked standing to challenge the search and seizure of the suitcase.

Justice Noriega dissented noting, among other things, that mere flight, without more, should not end a defendant’s Constitutional right to challenge a search where, as in the matter at bar, the Defendant’s words, actions and behavior all demonstrated his control of and possessory interest in the suitcase prior to fleeing.  In his view, the majority stretched the concept of abandonment into an exception to the warrant requirement, and that there were ways for the involved officers to conduct an orderly inventory search of the suitcase.

James S. Friedman, Esq., is a criminal defense attorney based in New Brunswick, New Jersey.  Mr. Friedman represents defendants with criminal charges in the New Jersey Superior Court in all counties, all New Jersey municipal courts, the United States district court in New Jersey and the federal and state courts in Brooklyn and Manhattan.  If you have a case in one of these Courts, call Mr. Friedman to discuss your options and to start preparing your defense.

The post Recent New Jersey Supreme Court Decision on Defendant’s Ability to Challenge Search and Seizure of Abandoned Property appeared first on New Jersey Criminal Defense Attorney Blog.

A report from the Pew Research Center that was issued in July, 2023, noted that as of that time, fewer than half of Americans (44%) viewed the Court favorably, while the majority of Americans (54%), viewed it unfavorably.  Interestingly, as of April, 2023, about half of Americans had a favorable view of the Court.  Thus, the Court’s favorability rating dropped significantly in a short period of time.  This drop was even more noteworthy in light of other Pew data showing that the Court’s favorability rating had declined 26 points since 2020.  Pew has been collecting polling data on the Court since 1987.  The recent surveys represented the first time that the public’s view of the Court was significantly more negative than positive.

Other survey data paints a similarly negative picture.  A Marquette Law School national survey conducted earlier this year found that 40% of Americans approved of the Court, whereas 60% disapproved.  The Marquette survey noted that approval of the Court has remained below 50% in surveys conducted since March 2022, when its approval rating was at 54%.  According to the Marquette data, the Court’s approval rating was up from a low point of 38% in July, 2022, but had declined from its July 2023 high of 45%.

Marquette also collected data on individual decisions.  Notably, 67% of Americans opposed the Dobbs decision that overturned Roe v. Wade.  Overall, 25% of all adults surveyed had a great deal of confidence in the Court, whereas 35% had some confidence and 40% had little to no confidence.  Since 2019, there was  also an increase in the percentage of the public who believed that the Court’s decisions were politically motivated, increasing from 35% in 2019 to 54% in 2024. Marquette also collected data on how the public views individual Justices.  The lowest ratings in this regard were Clarence Thomas (unfavorable rating of 33%); Brett Kavanaugh (unfavorable rating of 30%); and Amy Coney-Barrett (unfavorable rating of 24%).  (In case anyone is wondering, Justice Kagan had the lowest “unfavorable” rating at 9%.)

Overall, the Court’s favorability ratings are worsening with the passage of time.  This is significant because so much of the Court’s ability to function in a meaningful way stems from its credibility.  If the Court is not viewed as a credible institution, most Americans will simply lose respect for it and its decisions.  Undoubtedly, some, perhaps most, of the current Justices will dismiss these survey findings, taking the view that Court’s functioning does not depend upon popularity contests.  This is, however, an extremely short-sighted view of such findings.  The Supreme Court is the most obvious symbol of our justice system.  Everything it does reflects on the system as a whole.  If the Court is not respected and trusted by the majority of Americans, what does that say for our system as a whole?  Will Americans have faith in our courts and our system to produce just results?  All of the recent issues concerning ethics at the Court and, in particular, gifts accepted by certain Justices, certainly does not help.

The data also raises issues concerning whether and to what extent to Supreme Court is simply out of step with the Nation as a whole.  While it is true that the Court needs to respect precedent and render decisions accordingly, it is much more than a legal laboratory.  Its decisions affect every American in very real and profound ways.  There is a human side to what the Court does, and this should not be allowed to become totally lost in cold legal principles and attorney argument.  Decades ago, Robert Bork (remember him?) was denied confirmation, in part, because he failed to see the human side and human effect of what the Court does.  The Senators then sitting on the Judiciary Committee understood the importance of this.  Has this understanding disappeared?  This Court seems to think so.

James S. Friedman, Esq., is a criminal defense attorney in New Jersey, representing defendants in the New Jersey Superior Court in all counties, all New Jersey municipal courts, and the United States District Court in Newark, Trenton and Camden, New Jersey.  Mr. Friedman also represents defendants in the state and federal courts located in Manhattan and Brooklyn.  If you have charges in one of these courts, contact Mr. Friedman to start mapping out your defense.

The post How do Americans Feel About the United States Supreme Court? appeared first on New Jersey Criminal Defense Attorney Blog.

In March, 2016, when the child was eight years old, she disclosed to a detective during a videorecorded interview that the defendant, who was her music teacher, repeatedly touched various parts of her body during school hours.  The child also stated that the defendant placed her hand on his private parts over his clothing.  Defendant was subsequently indicted for sexual assault, child endangerment and official misconduct.

The trial court originally granted the State’s motion to admit the child’s entire statement, finding that it was trustworthy and the child would testify at trial.  However, while preparing for trial in 2022, the child could not remember most of the events she described in her statement six years earlier.  She apparently remembered the incident where the defendant put her hand on his genitals, but could not recall other incidents.  The trial court then granted a defense motion to limit the child’s trial testimony to the one allegation she could recall, and to redact the child’s statement to include that one incident.  According to the trial court, the child’s inability to remember the other incidents rendered her unavailable for cross-examination concerning those allegations, thereby violating the defendant’s right of confrontation.

On appeal, the Appellate Division reversed the trial court’s order, finding that the defendant’s confrontation rights were not violated by admitting the entire statement previously found to be trustworthy if the child testifies at trial and is subject to cross-examination.  Having the child testify at trial protected the defendant’s confrontation rights since defense counsel would thereby have the opportunity to expose the child’s inability to remember all of the underlying incidents before the jury.  The appellate court found that the defendant’s confrontation right did not depend upon the child’s ability to recall every detail, but rather on his ability to probe her faulty memory on cross-examination.  Since the child was going to testify at trial, the jury would be afforded the ability to assess her credibility and determine what, if any, weight to give her testimony.  Thus, the onus was placed upon defense counsel to thoroughly probe the child’s inability to remember various incidents at trial, creating the impression before the jury that her testimony as to every incident, including the one she remembered, was not credible and should be rejected.

As a practical matter, the largest problem facing defense counsel was questioning a child witness about sensitive subject matter that formed the backbone of the State’s case.  Generally speaking, child witnesses cannot be questioned as aggressively as adults.  There is always a fear that overly aggressive questioning will leave the jury with the impression that defense counsel was “beating up” on a child witness.  If that happens, the jury may credit the child’s testimony regardless of any perceived deficiencies in its content.  Nevertheless, if a witness is available for testimony at trial, it is defense counsel’s job to protect the defendant’s confrontation rights by exposing problems and issues with that witness’s testimony, thereby giving the jury reasons to reject it.

James S. Friedman, Esq., is a New Jersey criminal defense attorney centrally based in New Brunswick.  Mr. Friedman represents criminal defendants in the New Jersey Superior Court in all counties, all New Jersey municipal courts, and the United States District Court in New Jersey.  Mr. Friedman also represents criminal defendants in the state and federal courts in Manhattan and Brooklyn, New York.  If you have pending charges in one of these courts, call Mr. Friedman to discuss your options and plan your defense.

The post Recent New Jersey Supreme Court Decision Outlines Confrontation Clause Fundamentals appeared first on New Jersey Criminal Defense Attorney Blog.