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The New Jersey Supreme Court decided State v. Joe on March 7, 2017.  The case is significant because it relates to the issue of jail credit, which is an important issue in any case where the sentence includes the imposition of a custodial term.

Briefly, the two types of credit that arise most frequently in criminal cases are jail credit and gap credit.  By way of example, a defendant who has a single set of charges that are brought in a single indictment will be entitled to credit for any time spent in custody on those charges while the case is being resolved.  This type of credit is generally referred to as jail credit.  If the defendant is ultimately sentenced to a custodial term of five years with a three-year parole disqualifier, the jail credit will count against the three years, and the defendant will become parole eligible that much sooner.  Jail credit is not to be confused with gap credit.  Gap credit results when a defendant who has already been sentenced to a custodial term is subsequently sentenced again for different offenses committed before the earlier sentence.  Here, the defendant receives credit at the second sentence for the portion of the term of imprisonment already served on the prior sentence.  Whereas jail credit goes against the “bottom number” or parole ineligibility period, gap credit goes against the “top” or outside number.  Jail credit is generally viewed as more valuable because it effectively brings a defendant closer to parole.  (Anyone who seems confused by this brief explanation should not feel bad – credits are one of the most confusing subjects in New Jersey criminal procedure.)

In Joe, the defendant was arrested for drug offenses, but fled New Jersey.  The court issued a bench warrant for his arrest.  Joe was later arrested and charged with other offenses in New York State, and remained in custody on the New York charges from his arrest through sentencing, which was on February 13, 2012.  New Jersey filed an interstate detainer with New York on August 12, 2011, but Joe was not transferred to New Jersey until he was sentenced on the New York charges.  Joe resolved his New Jersey case by way of plea, and then requested jail credit for the time spent in pre-sentence custody in New York.  The sentencing court denied this request. Continue reading ›

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Megan’s Law provides that registrants who have not re-offended within 15 years of their conviction or release from custody, whichever is later, and are unlikely to pose a safety threat to others, can be relieved of their registration and reporting obligations.  Given the burdens of Megan’s Law and the restrictions it places on many aspects of daily living, many registrants “watch the clock”, with an eye toward moving for a court order relieving them of their obligations as promptly as possible.  A recent New Jersey Supreme Court case has, however, made it more difficult to succeed on such a motion.

In the Matter of AD, JB and CM was decided on February 7, 2017.  The case involved three registrants who sought relief from their Megan’s requirements.  AD was convicted of third-degree endangering the welfare of a child, which triggered Megan’s Law reporting and registration obligations.  He moved to be relieved of these restrictions 15 years after his conviction.  Initially, his motion was unopposed, and was apparently successful.  However, while on supervision, he had been convicted of violating a condition of his Megan’s sentence by not notifying his parole officer of a change of address.  The State eventually learned of this and sought reconsideration of the Court’s Order removing him from Megan’s.  AD’s argued that his application should be granted because the offense he committed was not a sex offense, but this was rejected.  Similarly, JB was convicted of second-degree sexual assault.  During his term of supervision, he failed to notify law enforcement of a change of address and, as a result, ultimately pleaded guilty to a fourth-degree offense.  This charge and guilty plea ultimately resulted in the denial of his application to be relieved of registration and reporting requirements.  The Court rejected his argument that the offense he pleaded guilty to during his term of supervision should not bar his application because it was not a sex offense.  Finally, CM pleaded guilty to third-degree aggravated criminal sexual contact and was required to comply with Megan’s Law.  He later applied to terminate his Megan’s obligations, but this application was denied because he violated a final restraining order during his term of Megan’s supervision.  Once again, the trial court rejected the argument that this offense was irrelevant because it was not a sex offense.

The issue before the Supreme Court in each of these cases was whether the term “offense” as used in the relevant provision of the registration and reporting statute referred only to a sex offense, or to a broader category of activities that included crimes, disorderly persons offenses and petty disorderly persons offenses.  Put somewhat differently, did the term “offense” in the registration statute mean sex offense, or any criminal offense? Continue reading ›

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In State v. Bacome, decided January 31, 2017, two Woodbridge detectives observed the defendant-driver and a passenger in a Ford Bronco.  The passenger, who was in the front seat, was later identified as the vehicle’s owner.  The detectives claimed that both men were known drug dealers.  They followed the Bronco to Newark, but lost sight of it in an area purportedly known for drug trafficking.  They then assumed that the Bronco would return to Woodbridge with drugs purchased in Newark.  They spotted the Bronco after returning to Woodbridge, and stopped it when they saw the passenger was not wearing a seatbelt.

Each detective approached the Bronco from opposite sides of the vehicle.  One detective stated that Bacome leaned forward and appeared to be reaching under his seat.  He immediately ordered Bacome out of the car.  The other detective then ordered the passenger from the car, and both men complied.  Each was questioned separately about their trip, and gave contradictory responses.  Since the passenger was now out of the car, the detective was able to to see rolled up paper shaped like a straw and a small piece of steel wool.  Both items were indicative of drug use.  The passenger consented in writing to a vehicle search.  The search yielded crack cocaine and other paraphernalia.  Both men were arrested.

The trial court denied defendants’ motion to suppress the drugs and other seized items, finding that the vehicle stop based upon the seatbelt violation was lawful.  Further, the removal of both men from the Bronco was also lawful because the detectives had reasonable and articulable suspicion of criminal activity. Continue reading ›

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Dylann Roof, who infamously shot and killed nine African-Americans engaged in bible study at a Charleston, South Carolina church, chose to represent himself during the sentencing phase of his federal capital trial.  During his “presentation”, he informed the jury that there was nothing wrong with him psychologically and also stated, in essence, that he would do it again.  Any statements Roof made concerning his psychological status were, however, totally false.  At some point during the two months preceding his sentencing hearing, a Court-appointed psychiatrist examined Roof and discovered evidence of numerous mental health disorders.  Additionally, Roof had described himself as severely depressed in the months preceding the shooting.

Significantly, Roof chose to represent himself at sentencing rather than allow his defense team to do so.  His decision on this issue appears to have been calculated and deliberate.  Roof’s defense team wanted to argue to the jury that he should not be sentenced to death for his actions because of his mental health issues.  Roof, however, specifically and unequivocally did not want the jury that was going to determine whether he should die for his crimes to hear of his psychological conditions.  As a result, his jury did not learn about any of the psychiatric evaluations prepared in connection with his case prior to deciding on his sentence.   And the jury is not alone on this issue – the record of Court-ordered evaluations was sealed by the trial judge.  Sealed documents from Roof’s trial are now being slowly released; however, documents pertaining to psychiatric evaluations prepared at the request of the Court or Roof’s defense team are not included.  The transcripts of two competency hearings also remain under wraps.  Thus, the documents that could provide the best indication of Roof’s motivations for his crimes are unavailable.

In fact, the relatively small amount of available information suggests strongly that Roof is something of a psychological basket case.  Motion papers filed by Roof’s defense team prior to trial noted that he suffered from Social Anxiety Disorder, a Mixed Substance Abuse Disorder, a Schizoid Personality Disorder, Depression and, possibly, an Autistic Spectrum Disorder.  The papers also noted that Roof had a relatively high IQ, but that it was compromised by his inability to process information and poor memory.  Further, defense attorneys get to learn a lot about their clients as they work through their cases with them.  Counsel’s papers also included personal observations and assessments concerning Roof’s abilities and actions.  They informed the Court that Roof tended to focus on unimportant details, could not process information from multiple sources, displayed a heightened need for predictability, and was easily overwhelmed.  Had the jury known of these issues, the sentencing result may have been different. Continue reading ›

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While investigating a noise complaint at an apartment complex, an officer observed James Legette standing on a common porch.  The officer approached and Legette partially opened a door leading into his area.  The officer then smelled burnt marijuana, entered the porch area, and identified himself as an officer.  As Legette began to walk away, the officer requested identification.  Legette responded that he had to retrieve his identification from the apartment, and the officer replied that he would have to accompany him.  Legette entered the apartment and the officer followed.  The officer noticed a bulge in Legette’s sweatshirt.

After entering the apartment, Legette presented his identification and the officer radioed a request to check for outstanding arrest warrants.  Legette them removed his sweatshirt and asked a woman who was in the apartment to place it in the bedroom.  The officer then seized the sweatshirt from the bedroom and took Legette, who appeared anxious, outside.  Obviously, the officer did not have a search warrant.

The arrest warrant check was negative, and Legette did not consent to a search of the sweatshirt.  The officer had a police dog sniff the sweatshirt.  A “metallic” noise could be heard when the dog moved the sweatshirt.  The officer then discovered a loaded handgun in the sweatshirt. Continue reading ›

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I have never believed that most lawyers or judges take juvenile delinquency cases seriously.  Many of them frequently refer to these matters as “kiddie crime”.  Indeed, it is not unusual for a judge who has sat in an adult criminal trial court to feel offended as a result of being transferred to a juvenile court.

Attorneys and judges who have such views of the juvenile justice system have, however, failed to see its importance.  One of the system’s most significant functions is to prevent juvenile offenders from becoming adult offenders.  It is generally believed that a juvenile who is charged with acts of delinquency is more susceptible to rehabilitation because they are young, and the probability of successful rehabilitation decreases as the juvenile moves toward, and eventually attains, adulthood.  Thus, successfully retraining and rehabilitating juvenile offenders while they are still relatively young reduces the likelihood that they will incur criminal charges as an adult.  The theory is simple – offending behavior that is corrected at an early stage in life will remain corrected.

Nevertheless, there are juveniles who commit the most serious crimes regardless of their age and relative inexperience.  These crimes include murder, armed robbery and sex offenses.  Juvenile offenders who engage is such conduct are typically “waived up” to the adult court, where they are subjected to the adult criminal process like any other adult criminal defendant.  Must we somehow balance the fact that they were juveniles when they committed their crimes against the severity of their offenses? Continue reading ›

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Arnett Blake, his girlfriend Cindy Edwards, and his former girlfriend Terri Hannah, all attended a party in Vineland, New Jersey.  At some point, Edwards encountered Hannah in the bathroom.  While there, Hannah allegedly made rude remarks about Edwards.  Hannah then left the bathroom and told Blake that she should “F___ [his] girlfriend up”.  Later, when Edwards and Blake tried to leave the party, Hannah approached Blake with a closed fist.  Blake pushed her away, and security detained him.  Edwards was then going to say something, but saw Hannah holding a high-heeled shoe.  Hannah hit Edwards in the face with the shoe.  Blake saw Hannah hit Edwards.  When Hannah was escorted out, Edwards saw she was not wearing shoes.  Hannah and Edwards later exchanged communications on Twitter which included a Tweet from Hannah saying, among other things, “shoe to ya face bitch.”

Hannah was charged with simple assault and proceeded to trial in municipal court.  There, she testified that she approached Blake at the party because she heard rumors that she planned to hurt Edwards, and she wanted to be sure that Blake understood that this was untrue.  She also testified that she was escorted from the party when she started yelling, that she did not see Edwards that night, and that she never hit anyone with a shoe.  This testimony was somewhat supported by that of a security guard who removed Hannah from the party and instructed her to not return, but also did not see her hit anyone with a shoe.

The municipal judge found Hannah guilty and, after a trial de novo, a Superior Court judge did the same.  Hannah then appealed her conviction to the Appellate Division. Continue reading ›

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June Gorthy met a mental health therapist at a conference in 1998, and then tried to commence a relationship with him.  The therapist rejected her many overtures, which were expressed repeatedly in numerous gifts, letters and telephone messages.  Gorthy then left her home in Colorado, drove to New Jersey, repeatedly contacted the therapist, and was ultimately arrested while sitting on the floor outside his office.  She was carrying a knife.  Guns, ammunition, another knife and an axe were discovered in her truck during a consent search.  Not long after her release from jail, she again began contacting the therapist, and was arrested and charged with stalking and weapons offenses.  She was then admitted to pre-trial intervention.  The conditions of her supervision required her to cease contacting the therapist.  She complied initially, but then called him 74 times during a three-week period.  She was then charged in a superseding indictment with stalking and weapons offenses.

Prior to trial, Gorthy filed a motion questioning her competency, and the trial court found her competent.  Before trial, her attorney served notice of the possible assertion of an insanity defense. This notice was supported by a psychiatrist’s report which concluded that Gorthy was delusional at all times relevant to the commission of the underlying offenses.  The psychiatrist also noted that any decision by Gorthy to not assert an insanity defense would be knowing, but not voluntary or intelligent.

Over her attorney’s objection, Gorthy ultimately refused to assert an insanity defense.  At a hearing, the trial judge explained to Gorthy what would occur if she was acquitted by reason of insanity versus what could occur if she did not assert the defense.  She remained steadfast in her refusal to assert the defense.  The trial court found that her delusional state rendered her incapable of refusing to assert the defense in a knowing, intelligent and voluntary way, and then asserted the defense on Gorthy’s behalf as to the stalking charge.  As to that count, Gorthy was found not guilty by reason of insanity.  The jury convicted Gorthy on the weapons counts.  The trial court sentenced Gorthy to probation on the weapons counts, and civilly committed her on the stalking count. Continue reading ›

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Earlier this week, I was in the Chancery Division, Family Part for a hearing on one of my juvenile delinquency matters.  While waiting to be called, I listened to the colloquy in the cases being heard before mine.  Virtually every case included some discussion involving texting or social media.  In the matter that was heard just before mine, the juvenile’s attorney asked the court to release her client – a recently arrested middle school student – on electronic monitoring.  The application was denied because just prior to arrest, the juvenile posted a photograph of himself holding a handgun on social media.  The prosecutor’s office checked virtually all of the popular social media outlets just before the hearing to see if the juvenile came up in any context, discovered the photograph and, of course, brought it to the court’s attention.

One of the issues in my juvenile case concerned certain text messages discovered on my client’s cell phone.  When the police arrested my client, they coaxed him into executing a consent-to-search form for his cell phone.  Upon searching the phone, they discovered text messages that, according to the state, implicated my client in the underlying offense.

There is a disturbing pattern here.  In the first case, the prosecutor’s office simply knew to check all of the popular social media outlets prior to going to court.  It seems that this has become part of their standard procedure in preparing for juvenile proceedings.  In my case, the police guessed – correctly – that there was a very high likelihood that my client’s cell phone would contain damaging text messages.  Continue reading ›

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One of the most frustrating aspects of prison life concerns inmate efforts to enroll in classes and programs offered within the prison system.  Virtually every prison system offers inmate programs that are designed to train inmates for re-entry into society.  These programs, which are designed to address many of the issues that caused the inmate to offend and be incarcerated, include drug and alcohol counseling, anger management, general societal skills, and vocational training.  It is believed, and hoped, that participation in such programs ultimately reduces recidivism by enhancing an inmate’s ability to contribute to the community in a positive and productive way upon release.  The programs are also important because successful completion in as many of them as possible can increase the likelihood of an earlier release on parole.  Earlier inmate release reduces prison costs, and frees prison resources for use elsewhere.

The issue that causes frustration relative to inmate programs is that there are not enough of them, and most of the existing ones are too small to meet the demand.  Many inmates try to enroll in programs during their term of incarceration, only to be placed on a waiting list because there is insufficient space to accommodate everyone.  It is not unusual for inmates to appear at parole hearings with a prison record showing the attempt to enroll in programs to which they were not admitted because the program was already full.  Many inmates – particularly non-violent offenders with relatively minimal records, or those with mental health or drug or alcohol issues – could benefit from such programs if there were more of them, and if the programs could hold more people.  Once again, the issue is cost.  We needs to ask where we want to spend our prison dollars.  Do we want to spend money on simply incarcerating people only to release them exactly as they were when they entered the criminal justice system thereby increasing their risk of re-offending or, alternatively, do we want to devote resources to training and education that will hopefully equip inmates to succeed upon release?

This is not a “feel-bad-for-the-poor-inmate” argument; rather, this has to do with spending large amounts of real taxpayer dollars in the most efficient and effective manner possible.  Spending money on just locking people up in a cage is patently silly and ultimately accomplishes nothing; spending money on training them to succeed after they are released is smart.  It is noteworthy that we are coming out of an election season.  Government spending and costs are issues frequently discussed in every federal and state election cycle.  Every candidate for every executive position wants to cut costs, and they each seem to have this endless list of proposed cuts that they will make if elected.  I cannot remember any candidate for any executive office ever discuss cutting a prison budget while they were on the campaign trail.  In light of the size of our national prison bill, stemming largely from the fact that that the US incarcerates more people than any other country on the planet, this issue clearly merits more attention.  The prison system is almost certainly one of the largest line items in the federal budget and in every state budget, and we can lower that number by, among other things, providing inmate training and education geared toward reducing recidivism.  Continue reading ›

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