New Jersey Criminal Defense Attorney Blog

Megan’s Law registrants must remain offense-free for 15 years following their conviction for the offense underlying their registration requirement.  The New Jersey Supreme Court recently gave some important guidance concerning what qualifies as a conviction for Megan’s Law purposes.

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.

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Most New Jersey drivers think that there is only way way for the State to prove that someone was driving while intoxicated/driving under the influence.  There are actually several ways for the State to establish its case, and drivers should be aware of each of them.  What follows is a very brief description of the different methods that the State can use to support these charges:

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.

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Earlier this year, our Supreme Court Ruled on a defendant’s ability to challenge the search and seizure of abandoned property.  In State v. Gartrell, an individual at Penn Station in Newark reported to New Jersey Transit police officers that the defendant had punched him.  The officers then spoke to the defendant, who had a rolling suitcase near him.  While the officers checked for outstanding warrants, the defendant engaged in several telephone conversations with someone he called “Spoon” or “bro”.  The warrant check revealed an active warrant, and the officers told the defendant that they were going to arrest him.  The defendant asked the officers if he could first give his luggage to Spoon, and the officers responded that they were first going to take the defendant into custody.  The defendant then called out “Spoon, will you get my clothes, bro”, turned as if to be handcuffed, ran from the officers leaving the suitcase unattended on the sidewalk, and was quickly apprehended.  While some of the officers present chased the defendant, another searched the suitcase at the entrance of the station and discovered handguns, ammunition, drugs and cash.

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.

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Recent surveys show that substantial numbers of Americans have a negative view of the United States Supreme Court.  This is important because so much of the Court’s vitality stems from the extent to which people view it as a credible institution.

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%. Continue reading ›

The Confrontation Clause requires that a criminal defendant must have the opportunity to confront and cross-examine the witnesses against them at trial.  In State v. Harrell, decided earlier this year, the issue before the Court was whether admitting a child’s entire videorecorded statement at trial violates a defendant’s confrontation clause rights if the child testifies at trial that they can only recall one incident of sexual assault described in the statement.

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. Continue reading ›

The United States Supreme Court recently issued an ethics code that is to guide the conduct of its justices.  There have been calls for the Court to issue such a set of ethics rules for some time, but recent revelations about the questionable ethical conduct of some of the justices apparently forced the Court to act.  Some of these problems included the fact that Justice Thomas’ wife worked to overturn the 2020 election just prior to the January 6 Capitol riot, and he continued to participate in cases relating to the riot and the election.  He also failed to disclose luxury travel provided by a wealthy conservative donor, payment of private school tuition for a grandnephew he was raising, a real estate deal involving the purchase of his mother’s house, and a loan that allowed him to purchase an elaborate RV.  Justices Alito and Gorsuch have also failed to disclose financial favors received from wealthy and powerful individuals with cases before the Court.

Clearly, the situation was so bad that the Court had to take some action to at least create the appearance that it could police itself.  However, there are still serious questions concerning how the new ethics code will be put into effect or enforced.  Exactly what activities would violate the ethics rules, and who would decide a violation actually occurred, also remain unclear.  There are no specific restrictions on gifts, travel or real estate deals.  In somewhat general terms, the new code cautions justices to avoid activities that detract from the dignity of their office, interfere with the performance of their official duties, reflect adversely on their impartiality, or lead to frequent disqualification.  Justices are also prohibited from allowing personal, political, or financial relationships from influencing their official conduct or judgement.  Justices are also barred from being a speaker, guest of honor, or being featured on the program, of certain fund raising events.

The new code also bars justices from speaking at events promoting commercial products or services, but includes an exception for events to sell books written by the justices themselves.  Obviously, any book deal for a US Supreme Court justice could be worth millions of dollars.  Also, any justice writing a book would have the resources of the Court to do so, including a team of law clerks to do the research and actual writing.

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Street Cop Training, a private company owned by a formed Middlesex County law enforcement officer, conducted a week-long seminar in Atlantic City in 2021.  The seminar was attended by about 1,000 officers from around the country, with about 240 of them from New Jersey.  Most of the New Jersey officers paid their attendance fee with taxpayer money.  In fact, approximately $75,000 in taxpayer funds were spent so as to allow the New Jersey officers to attend the conference.

The New Jersey state comptroller’s office recently issued a report saying that the seminar glorified violence and harassment, and normalized discriminatory behavior by police officers.  According to the comptroller’s report, the instructors taught unconstitutional police practices and promoted a warrior mentality.  Speakers at the conference included officers from the Warren Township police department, the Robbinsville Township police department and the Bergen County Prosecutor’s Office.  The officer from Warren apparently told the conference “I watched this car come off the highway, and I eye-F— the s— out of the female driver.  She doesn’t want to f— me back though.”  The Robbinsville officer showed a monkey on a screen while describing a black man during a traffic stop.  As part of his accompanying remarks, he stated “That’s not an 18-year-old kid dressed like Jesus coming eastbound out of Trenton.  That’s a 75-year-old Black man with a change in driving behavior, came into a gas station.”  The Assistant Prosecutor from the Bergen County Prosecutor’s Office thought the audience should know that “I would be remiss if I didn’t remind you or let you know that I have a 3-inch d—.”  The foregoing clearly demonstrates that this conference was a high-level police training seminar geared toward providing quality training to serious law enforcement officers who understand their societal role and seek only to discharge their duties in a Constitutionally correct manner.

The good news is that the report again focused a light on issues that have long existed in the New Jersey law enforcement community.  There are 72 police departments in New Jersey staffed by all-white officers.  108 departments in New Jersey are staffed by all male officers.  Only 11% of the New Jersey police force consists of female officers.  Clearly, New Jersey’s police force is not diverse in any meaningful way, and therefore does not at all reflect the State’s demographics.  The other good news is that the Robbinsville officer is now dealing with an internal affairs investigation as a result of the absolute filth that came out during his presentation.  At this time, it is not known if official action was taken as to the Warren officer or the Bergen County AP for their brilliant contributions to this highly sophisticated training event.

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Our Supreme Court recently considered whether the mere odor of marijuana coming from a vehicle during a traffic stop allows a search of the engine compartment and trunk.  In State v. Cohen, decided earlier this year, law enforcement had information from a confidential informant that the driver was bringing guns from another State into New Jersey for sale.  A “be-on-the-lookout”, or BOLO went out, and a trooper spotted the car on the New Jersey Turnpike and pulled it over for ostensible traffic violations.  When the trooper stopped the vehicle, he detected a strong odor of raw marijuana coming from the car, numerous air fresheners hanging on the rear-view mirror, and greenish-brown vegetation on the driver’s beard and shirt.  Another trooper arrived to provide backup, and the driver and his passenger were removed from the car, handcuffed and placed in separate patrol cars.  The trooper who stopped the car began a vehicle search, beginning with the passenger compartment where he located a 9mm spent shell casing in the glove compartment, but no marijuana.  The trooper did not seek a search warrant, but searched the engine compartment, where he discovered a rifle and a revolver, as well as the trunk where he located a duffle bag containing hollow point bullets.  He did not recover any marijuana from the vehicle, the driver, or the passenger.

The defendant, who entered a conditional guilty plea to a single count of unlawful possession of a weapon, moved to suppress the evidence recovered from the vehicle based on the fact that the only facts supporting the warrantless search was subjective testimony concerning the smell of raw marijuana without any marijuana actually being located.  The trial court found that the smell, without any detectible pinpoint, established probable cause to search the entire vehicle, and the Appellate Division affirmed.

The Supreme Court reversed and remanded the case.  The Court began by noting that the smell of marijuana constitutes probable cause that a criminal offense has been committed and additional contraband may be present.  However, the Court also recalled that a search which is reasonable at its inception may run afoul of Constitutional restrictions because of its intolerable intensity and scope.  The problem with the search in this case was the absence of meaningful facts other than the mere smell of marijuana coming from the passenger compartment.  The Court cited to cases that presented facts in addition to the mere odor of marijuana coming from that location.  In one case, the odor coming from the car was so strong that it suggested an amount substantially larger than what could be contained in a bag observed in the passenger compartment, coupled with the fact that the rear of the car was “hanging low” suggesting that the trunk contained heavy cargo.  In that case, a search of the truck yielded over 175 pounds of marijuana.  In another case, a search of the passenger compartment yielded a partially burned cigarette and a clear plastic bag containing half an ounce of marijuana.  When searching the rear seat, the officer detected a very heavy odor of unburned marijuana.  Locating nothing in the back seat, he opened the trunk and discovered 30 pounds of marijuana.  The Court’s point was that in both of these cases, there were facts beyond the mere odor coming from the passenger compartment that justified a broader vehicle search.

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Many defendants have either limited or no ability to speak English.  Thus, the court will supply interpreters in those cases where defendants require such services so that they can understand and participate in the proceedings.  Before COVID, live interpreter services were typically provided in court during any proceeding where they were required.  During the pandemic, many proceedings, including those where interpreters were used, were conducted virtually because in-person court appearances were suspended for health reasons.  Although live appearances have been largely reinstated, many hearings, including those requiring interpreters, are still conducted virtually.  Our Supreme Court recently considered whether a trial court may provide interpreter services in a virtual format during a live criminal jury trial.

In State v. Juracan-Juracan, the defendant spoke Kaqchikel, a language spoken by only 450,000 people worldwide.  The trial court provided him with an interpreter at his request.  However, the only available interpreter resided on the West Coast, and therefore appeared virtually.  Further, this interpreter did not speak English, but only Kaqchikel and Spanish; accordingly, a second interpreter was required to translate from Spanish to English.  This arrangement was apparently satisfactory for pre-trial proceedings.  The defendant moved for in-person interpreter services at trial.  The trial court denied this motion, asserting that it would be possible to manage this issue at trial using the same format employed to that point.  The Appellate Division denied the defendant’s motion for leave to appeal, but the Supreme Court agreed to hear the case.

In reversing, the Court recalled that there is a presumption in our courts that interpreter services will be provided in-person.  Such services were important because they helped guarantee many of a defendant’s basic rights, including a defendant’s right to be present at trial, to fully understand what was happening during the proceedings including, without limitation, all witness testimony, and to communicate effectively with defense counsel.  Thus, the Court tied interpreter services to the defendant’s constitutional guarantees of confrontation and effective assistance of counsel.

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Many people who are subject to Megan’s Law and Community Supervision for Life (CSL) or Parole Supervision for Life (PSL) regularly contact our firm to ask about relief from the requirements and obligations of these overly burdensome laws.  We file motions in all 21 New Jersey counties for clients seeking to have their registration and supervision obligations terminated, and our success record speaks for itself.

As we have discussed in other blog posts, the requirements for relief from these obligations are, generally speaking, fairly straight forward.  As to Megan’s, the registrant cannot have a conviction for more than one sex offense, and cannot have a conviction for aggravated sexual assault or sexual assault involving certain types of forceful activity.  As to both Megan’s and CSL/PSL, the parolee must be able to show that they have had no encounters with the criminal justice system for 15 years from the later of: (a) the date they were sentenced in their original sex offense case, or (b) the date they were released from any prison sentence imposed as a result of that case.  They must also show that they are not a danger to the community.

The 15-year requirement is the most frequent stumbling block to relief.  Unfortunately, many people who contact us concerning termination have had some sort of encounter with the criminal justice system while they were subject to Megan’s and PSL/CSL.  This can be, but is not necessarily, a bar to termination of registration and supervision obligations.  As to this issue, there is a crucial distinction between Megan’s Law and CSL/PSL which people need to understand. Continue reading ›