1. The difficulties associated with a fair and accurate reassessment of the critical events, years after their occurrence.
2. The need for achieving finality of judgments to allay the uncertainty associated with the unlimited possibility of re-litigation, thus strongly encouraging those believing that they have grounds for post-conviction relief to bring their claims swiftly, and discourages them from sitting on their rights until it is too late for a Court to render Justice.

State v. Mitchell 126 N.J. 565, 575 (1992)

In recent years, New Jersey case law has not been favorable to litigants on post-conviction relief with respect to the five year time bar. This is particularly problematic for individuals who have been detained by ICE due to convictions that are over 5 years old. Given the lag in administrative enforcement within the Department of Homeland Security, it is not uncommon for non-citizens to be detained by ICE officials ten or even twenty years after he or she was convicted of a deportable crime.

These individuals face stark opposition from the prosecutor due to the fact that older convictions are difficult to reprosecute given the time that has passed. This means police officers’ memories may have faded, and they are unable to recall the events to the crime. Additionally, evidence may have been destroyed, or witnesses may have passed away or may be unavailable. All of these factors are challenges the State faces when confronted with the prospect of trying revisit an old conviction. This is why filing post-conviction relief in New Jersey has a five year time bar limit, and the legislature in drafting these rules were so keen on limiting post-conviction relief applications to within five years of the conviction.

There are, however, considerations the court must given to litigants who file post-conviction relief applications beyond the five time bar. New Jersey Court Rule 3:22-12 rule allows for a relaxation of that bar if the defendant can demonstrate “excusable neglect.” But what does “excusable neglect” really mean?  I often describe it in the simplest terms: it means do you have a reasonable excuse for filing so late. Was there new evidence in your case that only came about recently, such as DNA evidence? Did you just learn of an error in your conviction that was unknown previously, such as ICE deportation? Or lastly, were you never told about post-conviction relief by the court or your attorney at the trial level? All of these questions are relevant to a finding of excusable neglect. In a prior article, I discussed how I have been successful in dealing with the five year time bar on behalf of my post-conviction relief clients based on Due Process and notice issues though New Jersey Supreme Court case law.

The post The Five Year Time Bar on Post-Conviction Relief appeared first on New Jersey Criminal Lawyer Blog.

Having handled hundreds of post-conviction relief petitions over the years, I have seen a varied treatment of the time bar among the judges. Some judges give little leeway to litigants filing for post-conviction after the five year time bar whereas others are more sympathetic to relaxing the restrictions, particularly if the post-conviction relief concerns immigration issues. One thing is clear: the five year time bar is something to be concerned about when filing for post-conviction relief.

Over last couple years, I crafted a legal argument grounded in due process rights and notice to the litigants that has been successful in relaxing the five year time bar on post-conviction relief. It involves the New Jersey Supreme Court case of State v. Molina, 187 N.J. 531 (2006). The New Jersey Supreme Court in Molina essentially held that one cannot hold a criminal defendant to an appellate time bar if the defendant is not told of that time bar. Although Molina dealt with defendants on direct appeal time limits, the opinion is surely applicable to post-conviction relief time limits. After the Molina decision in 2006, criminal defendants were required to be provided with appellate rights forms and told on the record of their direct appeal rights at sentencing. The modern appeal rights form signed by all defendants after sentencing today has its origins derived from the Molina decision.

So how does the Molina decision assist post-conviction relief clients on getting around the five year time bar? The concept simple: if a defendant is not told about the five year time bar concerning post-conviction relief at sentencing, then that defendant cannot be held to the five year time bar. Essentially, if the defendant was not told, it cannot be used against him in barring his petition for post-conviction relief. I have been successful with this argument in relaxing the five year time bar in cases where the conviction is 10 or even over 15 years old.

The argument is grounded in the defendant’s Fourteen Amendment due process rights to a fair trial. During the criminal process, there are certain rights which the court nor prosecutor cannot ignore, such as the right to a jury trial, right to confront witnesses against you, and right to remain silent. All of those rights are the hallmark of a fair and justice criminal justice system. Additionally, there is also the right to be properly informed of your appellate rights, which includes post-conviction relief time bars. I found in my extensive work representing clients on post-conviction relief in New Jersey that many judges simply forgot to advise defendants during their sentencing of their post-conviction relief rights and particularly the five year time bar. This is a violation of their due process rights and a viable due process ground for excusable neglect.

The post Post-Conviction Relief: Getting Around the Five Year Time Bar appeared first on New Jersey Criminal Lawyer Blog.

In New Jersey pursuant to N.J.S.A. 39:4-50.4a, one can be prosecuted for refusing the blood-alcohol test during a traffic stop. Moreover, that refusal charge is then coupled with a DUI charge based on the officer’s observations of the driver’s intoxicated condition. To further clarify, the State does not need a blood-alcohol test above the legal limit to convict one of a DUI. There are two ways one can be convicted for such an offense: a blood-alcohol test result about the legal limit or testimony from the arresting officer of one’s impaired condition during the traffic stop. For example, the arresting officer can testify how during the traffic stop how the driver’s speech was slurred, his eyes were blood shot, he smelled of alcohol, and he was staggering when he was outside the vehicle. The New Jersey Attorney General’s guidelines have a strict code of procedures that law enforcement must following during a DUI stop, one of which is the field sobriety test and other procedures besides the administration of blood-alcohol test. In short, the State does not need the blood-alcohol test to prosecute you for a DUI.

Given the State’s ability to prosecute you without a blood-alcohol test, the refusal of a blood-alcohol test is not an assurance that you will escape prosecution of a DUI. In fact, refusal of a blood-alcohol test is worse than actually blowing an above the limit blood to alcohol reading during a traffic stop. If one refuses, he or she gets charged with both the DUI based on the officer’s observations and a separate crime for the refusal; it is in effect like being charged with two DUIs during one traffic stop. So why is this important? If the refusal of a DUI stop can be criminalized, the prosecution can strong-arm a defendant into pleading guilty by threating prosecution on both the refusal and the DUI based on the officer’s observations. Nonetheless, this whole equation falls apart if an individual has a right to refuse.

In New Jersey, the current law N.J.S.A. 39:4-50.4a still criminalizes a DUI refusal. However, the recent decision by the Kansas Supreme Court could change everything. If an individual can refuse a breathalyzer, then their case becomes much more triable based on the officer’s observations. This means more individuals could escape prosecution on the DUI convictions, and the State could no longer strong-arm individuals into blowing on breathalyzers during traffic stops. We are, however, far from that day, but the recent decision in the Kansas Supreme Court could bring change to New Jersey and other states regarding these laws.

The post Kansas High Court deems DUI Refusal Law Unconstitutional appeared first on New Jersey Criminal Lawyer Blog.

So where does the law fit into all this? Very simply, it boils down what the Founding Father’s drafted in the United States Constitution. Specifically, the Fourth Amendment of the United States Constitution provides, “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” When law enforcement seek information from a private citizen or company, they are served with a subpoena if they are a non-offending third party or a search warrant if they are suspects in a criminal investigation. Legalese aside, the basic rule is that the government cannot just enter your home or seize documents without “probable cause,” i.e. good justification for entering or taking a private citizen’s property.

The Apple case is a bit more complex than a simple search warrant of a home where a criminal enterprise is possibly occurring. The FBI’s demand that Apple access information on a customer’s phone goes a step farther. It essentially requires that Apple develop a program to hack into its own phone. In effect, it is requiring Apple to break into a customer’s private property. This would be tantamount to a private home security company being asked to break into one of its customer’s homes due to suspicions of illegal activity and retrieve items for the government. This is not a simple case of turning over passwords or security codes; it is breaking and entering sanctioned by the federal law enforcement. Apple’s lawyers are correct that it places its customer’s privacy rights in serious peril when a company, charged with maintaining and guarding their customer’s privacy, must in fact hack into their customer’s own phones. That is going beyond what is required of a private entity.

In sum, it creates a dangerous and slippery slope when the FBI can turn private companies on their customers in furthering their criminal investigations. The founding fathers would be rolling in their graves if this would come to fruition. Apple is well within the right to refuse such a demand.

The post Apple versus the FBI: Privacy versus Security appeared first on New Jersey Criminal Lawyer Blog.

This case is it is possibly a forbearer of the future of criminal activity in this cyber age. Let’s face it, the internet is not going away, and it is only become more entrenched in our lives every year. It would stand to reason that cyber crimes are here to stay and would likely continue to constitute a greater bulk of law enforcement’s resources to combat those crimes in the coming decades. From a criminal defense perspective, this opens up a new world of litigation. For example, a new breed of search warrants dealing with tracking and monitoring your internet presence; following your every move or keystroke as log into various sites; or even recording your keystrokes to ascertain code and communications with other entities. All of these things raise privacy concerns which will no doubt be litigated in the courts.

The other issue is that local law enforcement will likely not have the resources to combat such attacks from cyber criminals, leaving the major crime units in the states and federal government potentially overwhelmed to combat the threat. It is clear from the attack on Hollywood Presbyterian Hospital that the hackers act fast and when law enforcement is alerted, the damage is already done. Moreover, the challenge of locating the perpetrators is another hurtle altogether. This also poses a serious jurisdictional issue since often times the hackers operate out of safe havens out of the reach of local law enforcement in the jurisdiction where the attach occurs. Often, these hackers will operate out of a countries like Russia and China where the federal and state government do not have the power to capture them.

Certainly there are host of challenges for law enforcement in this domain, but what are the solutions? Simply put, law enforcement must join them. Whether it is infiltrating a major drug operation or taking down various types of organized crime, the government employs informants and undercover agents in each of these instances. Now, many of these hacking groups are fragmented and live a fickle existence. Nonetheless, there are many young talents in this field that if the federal and state government wish to seriously combat these cyber criminals they must use some form of infiltration to gain intelligence in this area in an effort to prevent such attacks.

What does this mean for the criminal defense practice? Rest assured, this is not the death of street crimes, far from it. On the contrary, it offers an interesting opportunity for firms specializing in white collar crimes to expand their practice representing individuals accused of hacking. An even greater question is whether we as attorneys will be begin to accept retainers in Bitcoins in such instances.

The post Hacking: The New Frontier of Criminal Activity appeared first on New Jersey Criminal Lawyer Blog.

There is a major flaw in the program is bureaucracy itself. For example, the great majority of criminal offenses are prosecuted at the state level, yet it is the United States Immigration and Custom’s Enforcement Agency that approves the U-Visa. The initial test cases show that the process for approval for this visa can be long and mired in administrative delays between the federal and state and local governments. The process first starts with the local police and county prosecutor’s office obtaining the witness’s information, processing the paperwork at the state level, and then making a series of phone calls to contacts both at the state and federal level. In a busy police department, such as the New York Police department, the work involved can lead to inordinate delays. Currently, there is purported a backlog of 64,000 applications, yet only 10, 000 can be approved each year.

The delay causes another problem regarding the witnesses or victim’s safety depending on the nature of the offense. The delay can cause the witness, likely someone skeptical of government protection, to change his or her mind with respect to cooperation. Moreover, the delay can lead to a delay in the trial or criminal proceedings giving more time to the perpetrator or his or her family to intimidate or threaten the witness.  Generally, law enforcement wishes to prosecute crime on an expedited time-frame. On the contrary, the defense generally benefits from delays. With passing time, one can see a witness having second thoughts of testifying or even leaving the state or county; evidence being lost or misplaced; and, most commonly, the witnesses fading recollection of the events that can be exploited on cross-examination at trial. From the defense perspective, this program would also be available to defense witnesses. Many times, I have represented illegal immigrants in trial matters, and many witnesses, who are also illegal, have refused to assist my client due to fear of deportation should they reveal themselves to law enforcement. That fear will hopefully be abated by the full implementation of the U-Visa program.

These administrative delays in the U-Visa program are being addressed by immigrant advocate groups in hopes of streamlining the process. This involves allowing applicants to apply within 14 to 90 day windows, thereby staying a potential deportation or given the potential answer within a reasonable period of time. The U-Visa program is no doubt a step in the right direction, yet it still has many administrative hurtles to overcome, most notably the bureaucracy inherent in a system that created it.

The post Amnesty for Cooperation: The U-Visa Program appeared first on New Jersey Criminal Lawyer Blog.

Couch was charged as a minor with four counts of intoxicated manslaughter for the deaths of the pedestrians and a host of other charges. In December 2013, Judge Jean Hudson Boyd sentenced Couch to ten years of probation and in-patient therapy in lieu of prison. This extraordinary sentence was given to Couch after his attorney’s argued Couch suffered from “affluenza,” which is a condition manufactured by his attorney in his defense. It purportedly relates to an individual’s inability to fully comprehend the consequences of his criminal actions due to the all the trappings of a privilege upbringing. The judge and prosecutor were ultimately swayed by the defense attorney’s argument, resulting in what is an extremely lenient sentence even considering Couch’s youth.

The bottomline: there no basis in psychology for the “Affluenza,” nor has any reputable scientific organization ever diagnosed any such condition -that being said, my experience is that one can usually find some psychologist to testify as to even the most obscure psychological conditions. Nonetheless, the defense is nothing more than last ditch effort for a defendant that has essentially no defense. Strangely enough, it worked and the credit goes to his defense attorney. When the most logical and typical of defenses fail, then a defense attorney must be creative in crafting a defense.  Our case law is rife with examples of good defense lawyering leading to changes in the law. Although Couch benefited in this one instance, the affluenza defense has not been used in any other known jurisdiction; therefore, this particular defense will not be successful going forward.

As for Couch, he has undone all the all the hard work his defense attorney did to earn him the plea deal. Recently, he was seen on a Facebook video playing “beer pong” with friends when he was supposed to be staying clear of alcohol. Moreover, he seized all contact with his probation officer. These are a clear violations of his probation. Upon the news of this violation, he and his mother absconded to Puerto Vallarta, Mexico. They were recently captured by the Mexican Police and face extradition to the United States. This time, the prosecutor will be seeking jail time for the violation of his probation and the affluenza defense will not be of any use to him.

The post The “Affluenza defense”: A Criminal Defense Attorney’s Hail Mary appeared first on New Jersey Criminal Lawyer Blog.

The United States Supreme decided this past week to hear cases stemming out of North Dakota and Minnesota concerning the constitutionality of criminalizing the refusal of breathalyzer tests. The legal issue in question concerns law enforcement’s potential infringement of the Fourth Amendment right to unreasonable search and seizure under the United States Constitution when police criminalize a suspect for refusing the breath test during a DUI stop. The Supreme Court has ruled in general that the police cannot search a driver or vehicle upon arrest without a warrant unless it is for their own personal safety or to preserve evidence. Challengers to this law look to the Supreme Court’s 2013 decision holding that police could not conduct blood tests without a warrant.

In New Jersey, refusing a breathalyzer is worse for the suspect than actually agreeing to the breathalyzer test and blowing a blood-alcohol amount above the legal limit. First, refusal of the breathalyzer constitutes a separate offense that carries similar penalties to the DUI offense itself. You have to first start with the proposition that the police do not need a blood-alcohol test to convict you of drunk driving. The police officer’s observation of the suspect during the traffic stop, i.e. slurred speech, glassy eyes, odor of alcohol emating from the suspect, etc. are all pieces of evidence the court can use, based on the officer’s observation of the suspect’s condition on or around the time of incident, to convict an individual of drunk driving without the breath test. By refusing in New Jersey, the police will charge you with a DUI and refusing to submit to breathalyzer test while both carry essentially the same penalties. You are essentially being charged with two DUIs for the same incident. This is in contrast to submitting to the breathalyzer and blowing a blood-alcohol amount above the legal limit and being charge with only a DUI. Additionally, refusing a breathalyzer can limit defenses your defense attorney can make in a typical DUI case. Most of the defenses in this area revolve around suppressing evidence such as the results of the breathalyzer test for the police’s failure to follow proper procedures in administrating the test. If the police do not follow the proper procedures, then the evidence of the blood-alcohol test cannot be considered by the judge and the DUI may be dismissed. Nonetheless, in the case of a refusal, your defense attorney cannot raise this defense, and your attorney is left with the daunting task dealing with both the officer’s observations of the driver and the consequences of the driver’s refusal to submit to the test.

Although a refusal does not mean that your attorney is not without means to defend you, but it just makes the job a lot more difficult given the New Jersey’s strict law towards refusing such tests. The law is based on protecting the public and discouraging individuals from refusing such tests. Given that the United States Supreme Court will be dealing with this complex constitutional issue over the next year, it could drastically change the law in this area.

The post DUI and The Right of Refusal: The US Supreme Court to Decide appeared first on New Jersey Criminal Lawyer Blog.

This incidence raises the specter of gun control in the United States. Gun control laws vary widely state by state. For example, New York and New Jersey have some of the strictest gun control laws in the country.  New Jersey enacted the “Graves Act” N.J.S.A. 2C:43-6(C) which imposes mandatory minimum state prison sentences for the unlawful possession of a firearm. New York has a similar a law. These laws make defending an individual charged with gun possession in these states a difficult task.

Nonetheless, these cases are not black and white. A sound defense in these cases is to file a motion to suppress the evidence, i.e. the gun, through constitutional violations made by law enforcement. Law enforcement has tightened its procedures in these cases making it difficult to suppress the weapon, yet any motion with some merit may sway the prosecutor into dropping the gun charge in exchange for a plea to a non-weapons related offense. Additionally, the issue of who possesses the weaspon is often the most heavily litigated in these cases. For example, a typical scenario involves a routine traffic stop and search which reveals an unlicensed firearm in the car with four individuals in it. All four individuals could be charged with constructive possession of the weapon. The case then turns of each individual’s knowledge and intent to possess the weapon. Issues such as the location of the weapon, its proximity to the individual, and the individual’s knowledge of the weapon would all be relevant to plea negotiations or trial.

The situation involving Ms. Duva-Rodriguez, who had license to carry a concealed weapon, exemplifies the disparity on how the law varies from state to state. Individuals living in either New Jersey or New York can apply for a concealed weapons permits in those states, but they are rarely granted to private citizens, the theory being the fear of incidents such as the one that occurred in Ms. Duva-Rodriguez’s case. The danger of a private citizen exacting vigilante justice in a crowed parking lot or mall in states with large urban areas is too great a risk given the large urban centers in these states. For this reason, the law in these states will only trend towards making private gun ownership more difficult.

In sum, from a criminal defense standpoint, the need to stay current on the ever-changing gun control laws is paramount. The case law in this area evolves rapidly as creative defense attorneys find loopholes and exceptions ground on constitutional principles; therefore, if you are a gun owner, it is important to continually familiarize yourself with your state’s law to avoid any legal repercussions.

The post Gun Control: The Stark Reality for NY and NJ Residents appeared first on New Jersey Criminal Lawyer Blog.

Incidents in which individuals decide to use social media to record their criminal acts are becoming more and more common place. Putting aside for the moment the sheer stupidity of such a decision, the legal consequences of such an action are devastating. First, it should be obvious that its use gives oftentimes the prosecution rock solid evidence to secure a conviction. Secondly, it prevents your criminal defense attorney from securing a favorable plea deal due to the strength of this evidence. Lastly, and tied to the second point, it often carries media exposure which makes the prosecutor less likely to downgrade the initial charge. In short, social media has become a valuable tool for the prosecution over the last 10 years.

This begs the question as why would one do this? The answer is woven into the changing fabric of our society. We are now more than ever tied to social media, so it becomes an extension of our life. Whether it be online dating, coordinating a get-together, or looking for a new job. With that understanding, it is also a platform to get attention which is the prerogative of so many individuals, but particularly teenagers and young adults. That means social media becomes a permanent fixture in their lives. Essentially, they do not live private lives, but ones with live streaming, chats, and posting recorded videos and photos. Although all this is viewed as convenient means to socialize with others, users often forget one critical fact: everything is recorded.

From a criminal defense standpoint, the key question we ask in every case is: What can the prosecutor prove? If something is recorded, that often presents a problem for the defense when facing a criminal conviction. I often think back to what if Bill Clinton or John F. Kennedy during their college years had social media. There may not have been much of a debate if Bill Clinton inhaled marijuana, and there would likely be other indiscretions that would have resurfaced during his later years if he lived in a social media age. Nonetheless, that generation had a veil of privacy due to fleeting evidence of any such event. That is not the case with today’s young generation. They must be far more wary with the understanding that their indiscretions have a greater chance of resulting in a criminal conviction due to their use of social media. One thing is for sure, social media is here to stay and law enforcement has all the tools to access those resources in securing prosecutions. Those that use social media must use a greater degree of discretion when using such resources.

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