In criminal law, there is only one case you truly need to know
Don’t you just hate it when you’re on your feet making a great, even brilliant, legal argument and suddenly, out of nowhere, the judge asks you for some case law to support your position? Well, if this outrageous experience ever happens to you in a civil case, I can’t give you any advice. But when you are arguing a criminal case and you suddenly need to provide some law, just cite “State v. Johnson.” You can never go wrong because you’ll always be right! There’s nothing deceptive or underhanded about it. That’s because somewhere, there is a State v. Johnson supporting the precise legal proposition you need. Check it out. As of Oct. 10, 2012, there have been 392 written decisions in New Jersey captioned State v. Johnson. The vast majority of these have been approved for publication. Moreover, the collection of Johnsons includes a large number of landmark decisions in criminal law. Just consider the following Johnson cases you can pretend to know about when you’re stuck for the name of a criminal case during an argument.
• State v. Johnson, 42 N.J. 146 (1964).
This is the granddaddy of all the Johnsons. As of today, it has been cited 2,825 times in published decisions since 1964. While most landmark decisions have one main issue, this case has five!
• State v. Johnson, 168 N.J. 608 (2001). Before the cops smash your door down without knocking, they had better read this Johnson. It details the law of “no-knock” search warrants. So far, it has been cited 100 times in 11 years.
Apart from the foregoing, a few of the runners-up include:
• State v. Johnson, 421 N.J. Super. 511 (App. Div. 2011) (Mug shots in court) (cited 3 times);
• State v. Johnson, 376 N.J. Super. 163 (App. Div. 2005) (Illegal Sentences) (cited 31 times);
• State v. Johnson, 365 N.J. Super. 27 (App. Div. 2003) (Ineffective assistance) (cited 56 times);
• State v. Johnson, 127 N.J. 458 (1992) (Entrapment) (cited 94 times);
• State v. Johnson, 120 N.J. 263 (1990) (Inevitable discovery) (cited 257 times);
• State v. Johnson, 118 N.J. 639 (1990) (Escape) (cited 95 times);
• State v. Johnson, 203 N.J. Super. 436 (Law Div. 1985) (DWI on a Bike) (cited 22 times); and
• State v. Johnson, 186 N.J. Super. 423 (App. Div. 1982) (Probation hearings) (cited 9 times).
Got the general idea? Good! Now let’s practice. Picture yourself in court saying, “Well, as Your Honor may know, in State v. Johnson, the court held [insert relevant argument on criminal law legal topic]. I’ll be happy to provide Your Honor with the citation later.” See? So simple, even a lawyer can do it. Now if I could just find the name of a good civil case that has been cited 392 times. ■
Peyrouton is a creative attorney with a unique sense of humor, which helps him survive running a private practice in Hudson County.
Reprinted with permission from the OCTOBER 29, 2012 edition of New Jersey Law Journal . © 2012 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.
One attorney’s perspective on immigration reform
The time is now!” as President Obama recently announced in his famous immigration speech at Del Sol High School in Las Vegas. Indeed, he uttered this phrase numerous times during his presentation to an impassioned and eager crowd. His point: “the time is now” for comprehensive immigration reform. In his speech, the president proposed a plan for undocumented immigrants to earn citizenship. It is a procedure that will encourage them to come out of the shadows. According to the president, immigrants living here illegally must be held responsible for their actions by passing national security background checks, paying taxes and learning English before they can earn their citizenship. The so-called “undocumented” are comprised of aliens residing illegally in the United States. In most instances, they have either entered the United States without inspection (EWI) or entered legally but violated the terms of their visas by remaining beyond their authorized period of stay or by engaging in unauthorized employment. Before analyzing the importance of the “comprehensive” aspect of the president’s proposal, and in order to explain to those who oppose this reform on political grounds because it provides a path to citizenship (and voting), it is important to stress that no law enacted under the Immigration and Nationality Act (INA) has ever provided automatic citizenship to aliens residing unlawfully in the United States. As an immigration attorney, I understand the president’s proposal to mean that undocumented aliens must first comply with all of the requirements outlined in his Las Vegas speech prior to obtaining lawful permanent resident (“green card”) status in the United States. Thereafter, the immigrant would have to comply with all the current administrative requirements before becoming eligible to be a naturalized American citizen. The central point of the president’s comprehensive proposal rests in his philosophy of “earned citizenship.” His plan would allow an estimated 11 million (and possibly many more) people who have broken the rules by being in our country
illegally to have a second chance. As the president reasoned, the vast majority of these people aren’t looking for trouble. They’re just like you and me. They work hard. They love their families and their adopted country. Regardless of what nation they have come from and what language they speak, they have all heard the famous call of the haunting words of Emma Lazarus, engraved upon the pedestal of the Statute of Liberty: [...] Give me your tired, your poor, Your huddled masses yearning to breathe free. The wretched refuse of your teeming shore. Send these, the homeless, tempest-tossed to me, I lift my lamp beside the golden door!
Almost everyone reading this article is a descendant of an immigrant. In his speech, the president stressed that it’s important for us to remember our history. “Unless you’re one of the first Americans, a Native American, you came from someplace else. Somebody brought you [here].” Now, what did the president mean when he stated in his Las Vegas speech that our immigration system is out of date and badly broken? What lies at the heart of his urgent call for comprehensive immigration reform?
Since the last immigration amnesty law issued during the Reagan administration in 1986, Congress has enacted 143 new statutes amending the Immigration and Naturalization Act (INA). Among the more popular and well-known of these are: • The Nicaraguan and Central American Relief Act (NACARA), which provided immigration benefits and relief from deportation to certain Nicaraguans, Salvadorans, Guatemalans, Cubans and nationals of the former Soviet bloc countries who arrived in the United States for the purpose of seeking political asylum; • The Legal Immigration and Family Equity Act (LIFE) of 2000, which was intended to accelerate the immigration process for certain families and make it easier to obtain work visas; • The Violence Against Women Act (VAWA), which created a route to obtain immigration status for certain battered spouses and children of U.S. citizens and lawful permanent residents; and, most recently, • Deferred Action for Childhood Arrivals (DACA), which grants a deferral on removal actions and provides employment authorization to certain illegal immigrant children. While it is true that all of the above listed acts have benefited a number of select, undocumented immigrants, these new laws have been narrowly tailored by Congress to affect only a small percentage of the 11 million people that the president wishes to bring out of hiding. The requirements of each act are like complex algorithms. All too often, an undocumented person will fail in his efforts by meeting most, but not all, of the administrative grounds for relief. Moreover, these requirements are often utterly arbitrary and offer no rhyme or reason as to their purpose. The political reality behind immigration law often results in statutory enactments that are intended to protect certain discreet, favored groups, but not others. For example, an undocumented person from Honduras may qualify for Temporary Protected Status (TPS). However, an undocumented person from any country that’s two miles outside of the Honduran border is not eligible for this kind of protection. Under VAWA, an undocumented person may receive protection if he or she is the battered child or spouse of a United States citizen. But, if the victim is a battered fiancé, he or she must either flee the country or continue to endure the abuse while remaining illegally in the United States. Finally, a person who was brought here as a child before June 15, 2007, may qualify for DACA. Children who arrive after that date have no recourse under the act. Too many times I’ve had to suffer through a client consultation. It’s painful to watch a totally “Americanized” child sitting across my desk cry frantically when I explain that the law protects his older brother but not him. He cries out of bitter confusion and disbelief. “You mean to tell me I don’t qualify because my parents brought me here in December of 2007?” Logically, what difference should a few months make? I hear stories like this on a daily basis. Hardworking, honest and humble people come to my office every day to see if there’s an immigration pigeonhole into which their case will fit. As an additional complication, following the enactment of the Illegal Immigration and Immigrant Responsibility Act in 1996 (IRAIRA), immigration controls were severely increased. The act introduced the concept of unlawful presence in the United States and established a variety of automatic bars (coupled with lengthy federal imprisonment) for removed persons from returning to the U.S. For example, if a person is unlawfully present in the United States for over 180 days, a three-year bar is triggered. If the same person is unlawfully in our country for over 365 days, a 10-year bar is triggered. As is the case today, partisan politics were the driving factor behind the act in 1996. IRAIRA was intended by the majority political party in the Congress of that era to tremendously narrow options for relief. For example, a lawful permanent resident (LPR) who has been convicted of certain select crimes under either state or federal law is removable from the country. See INA Sec. 212. [8 U.S.C. 1182]. In addition, a tourist who overstays his visit by one day will find that his visa has become void. See INA Sec. 222 G. Given the harsh realities of the current statutory framework, my undocumented clients generally fit into one of four categories: 1. They qualify for relief under the law and we can process their paperwork. 2. They do not qualify for relief and must indefinitely continue to live in the shadows. 3. They meet most but not all of the requirements. 4. They meet all the requirements but don’t have the requisite documentary proof and thus must return to live in hiding. The frustration level for the clients associated with this last category is intense. What do I mean that they do not have the documentary proof? By way of example, a teenage client may qualify for DACA, but doesn’t have any satisfactory proof that he entered the United States before June 15, 2007. He has no medical records, cellphone bills, a property lease, income tax statements or bank accounts. In short, he has nothing to prove that he has quietly lived as a typical American teenager in the United States for many years. In closing, I’ll share with you the common, boilerplate sentiment our federal government sends to thousands of applicants on a daily basis denying their immigration applications: Dear Applicant, Your application is denied. We are not telling you and your family member (a U.S. citizen or lawful permanent resident) that you cannot live together. We are just telling you that you cannot live together in the United States.
When will our government be able to send a meaningful message to the undocumented people living in this country who yearn to breathe free? The time is now. ■
Peyrouton is an immigration attorney in Union City.
Reprinted with permission from the APRIL 22, 2013 edition of New Jersey Law Journal . © 2013 ALM Media Properties, LLC.
All rights reserved. Further duplication without permission is prohibited.
It can happen. Don’t give your client the wrong advice.
Yes, that is correct. The title is a hybrid term combining the words “deportation” and “ordinance.” Although the term “deportation” has been subsumed under the term “removal,” for the immigration practitioner they are basically interchangeable. Deportation is the formal removal of an alien from the United States when the alien has been found legally eligible for removal for violating the immigration laws. Prior to April 1997, deportation and exclusion were separate removal procedures. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 consolidated these procedures. After April 1, 1997, aliens in and admitted to the United States may be subject to removal based on deportability. Now called removal, this function is managed by U.S. Immigration and Customs Enforcement (ICE). Here is where the bad advice comes in. I can hear municipal court practitioners scoffing at the seemingly ludicrous idea that an ordinance violation can affect immigration status. “No one was ever deported because he pled guilty to an ordinance!” Well, the sad truth is
that both ordinances and other municipal court petty violations, such as disorderly persons’ offenses, can trigger the removal of your client from the United States. Although disorderly and petty disorderly persons offenses (D/P) are not crimes under the New Jersey Constitution, N.J.S.A. 2C:1-4(b), the federal officials at the Department of Homeland Security (DHS) do not care. The way a state views its own criminal statutes has no impact on federal immigration law. DHS will analyze the specific elements of the underlying conviction, and if they meet the standards of “crimes involving moral turpitude” (CMT), your client may have problems. The definition of a CMT is not in the immigration statutes and has evolved over the years through the case law. As a general rule, a crime involves moral turpitude if it is inherently base, vile or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general. Matter of Olquin, 23 I&N Dec. 896 (BIA 2006). Whether your client is a lawful permanent resident (LPR) or, worse, if your client has no legal status to be in the United States (i.e., “out of status”), a single D/P conviction for such common offenses as theft, shoplifting and certain assaults could trigger removal proceedings. Let’s take a very common example.
Under INA § 237(a)(2)(B)(i), a noncitizen may be deported for any violation of law relating to controlled dangerous substances (CDS), regardless of statutory classification. The only exception is conviction of simple possession of 30 grams or less of marijuana. In this situation, the conviction does not become a deportable conviction as long as the defendant does not have any prior drug convictions. So here is a practice tip: you should consider a drug paraphernalia conviction as a deportable offense since it could later constitute a prior offense. (For more on CDS, please refer to 21 U.S.C. § 802.) The solution under these circumstances is to reach a plea agreement with the prosecutor to stipulate that the amount of CDS (usually marijuana) was under 30 grams. Elite advocates take it a step further and ask the judge to make it a part of the judgment of conviction (JOC). Super elite advocates go even further and accompany their clients to the violation clerk’s window for payment, and make sure that the JOC reads under 30 grams. Finally, it is always a good idea to attach the state police forensic laboratory report to the court file as an exhibit when the report shows that the amount of marijuana seized was less than 50 grams. Have your client keep a copy of this document as well. He may need it some day. It’s worth mentioning that when your client has been an LPR for five years, his chances of becoming a naturalized U.S. citizen will be greatly diminished following a CDS conviction. Common minor drug offenses can be interpreted by the DHS to mean that your client may not meet the “good moral character” standard required for citizenship. 8 CFR Sec. 316.10. Given the foregoing, it is critical to understand that an ordinance violation may also impact on immigration status. A minor ordinance violation may result in your client’s deportation. Yes, you read that correctly. A conviction for violating a minor local ordinance may provide the legal basis for DHS to initiate removal proceedings against your client. As the fourth smallest state in the Union, New Jersey consists of 565 municipalities. These municipalities are broken down into boroughs (250), cities (52), towns (15), townships (245) and villages (3). Each municipal council adopts ordinances that may be pre-empted by the New Jersey Code of Criminal Justice, N.J.S.A. 2C:1-1 to 104-9. Pursuant to N.J.S.A. 2C:1-5d, municipal ordinances that deal with areas of law covered by the criminal code are pre-empted. All too often these ordinances, which should never see the light of day, are adopted and applied consistently. The New Jersey courts have addressed the issue of pre-emption and municipal statutes in the following published cases: State v. Crawley, 90 N.J. 241, 252 (1982) (municipal loitering ordinance); State v. Felder, 329 N.J. Super. 471 (App. Div. 2000) (municipal loitering for purpose of obtaining narcotics ordinance); State v. Meyer, 212 N.J. Super. 1 (App. Div. 1986) (local obscenity ordinance); Dolecky v. Borough of Riverton, 223 N.J. Super. 354 (Law Div. 1987) (ordinance prohibiting posting of “No Trespassing”
signs). The two most pertinent cases are Crawley and Felder. The defendants in Felder and Crawley were charged in Jersey City Municipal Court with violating a municipal ordinance for loitering in a public place where CDS was being distributed. Both sought dismissal on pre-emption grounds and were denied at the municipal and law division levels. The appellate court reversed. Writing for the court, Judge Skillman noted in Felder: If municipalities were permitted to adopt local counterparts to provisions of the Code, the express legislative policy of eliminating “overlapping and redundant provisions” from the criminal law would be defeated. This policy, then, implies a general legislative intent to exclude local legislation from areas covered by the Code of Criminal Justice. With this background, the municipal court practitioner must be aware that there may be hundreds of ordinances across the state that have not been challenged on preemption grounds and are alive and well. Every day, across the state, municipal councils pass ordinances that directly violate N.J.S.A 2C:1-5d. Judges, prosecutors and defense counsel use these otherwise pre-empted ordinances without hesitation as part of the plea bargaining process. They serve as a convenient tool in disposing of cases in municipal court.
The first step for the municipal court practitioner is to learn whether or not the client is a United States citizen. If he is not, the attorney must learn about his correct status. For example, is the client in the U.S. as an LPR, visa holder or out of status? Secondly, the attorney must investigate whether the charges are considered by the DHS as crimes of moral turpitude. Third, the attorney simply must obtain his client’s criminal case history. Next, discuss with the prosecutor viable options that will help avoid the removal threat. If there are discussions relating to amending the charges to a borough ordinance, the attorney should exercise great care. He should research the ordinance and determine whether it should be considered as pre-empted. Lastly, even if the ordinance should not be pre-empted, he should match the elements of the ordinance against INA Section 212(a)(2)(A) (i)(I), paying particular attention to see if the ordinance involves elements of either fraud or larceny. Keep in mind that if the defendants in Felder and Crawley had been noncitizens, their guilty pleas to an ordinance that prohibited a person from loitering in a public place where CDS was unlawfully distributed could have had adverse immigration consequences. By the time the issue of pre-emption was heard at the municipal, law division and appellate levels, ICE may have already placed them on a plane back to their native countries. So, now you see how it can be bad advice to suggest that your client plead guilty to an ordinance violation as part of a plea agreement.■
Peyrouton is a solo practitioner in Union City. His practice focuses on immigration law and criminal defense.
Reprinted with permission from the JULY 15, 2013 edition of New Jersey Law Journal . © 2013 ALM Media Properties, LLC.
All rights reserved. Further duplication without permission is prohibited.
DNA samples may now be taken from people who have been arrested, but not convicted, for certain crimes
On Nov. 15, Kim Cope was driving her car during her lunch break when she was suddenly pulled over by members of the Fort Worth police department. Although the traffic stop was routine, its purpose was utterly unprecedented. According to the Dallas Observer and Fort Worth’s television station 5 NBC, during the stop, the police asked Cope to provide a voluntary DNA sample from a swab of her cheeks. Moreover, they offered to pay her $10 for the sample. As things turned out, this motor vehicle stop was part of the 2013 National Roadside Survey of Alcohol and Drugged Driving, a periodic study undertaken by the federal National Highway Transportation Safety Administration. The local Fort Worth
police who made the traffic stop in Cope’s case were working off-duty on behalf of the federal government. Ultimately, Cope declined to provide the DNA sample and was permitted to go on her way. In the coming months and years, Cope’s experience may become a matter of routine in New Jersey, as law enforcement agencies seek to collect more and more DNA samples from vast numbers of people who have not been convicted of any offense. This procedure has been made possible as a result of a decision in June by the United States Supreme Court, Maryland v. King, 133 S. Ct. 1958 (2013). The court’s late-term decision in King did not attract any significant media attention when it was announced and failed to generate anything approaching the high level of public interest associated with the Defense of Marriage Act decision in United States v. Windsor, 133 S. Ct. 2675 (2013), or the Voting Rights Act holding in Shelby County v. Holder, 133 S. Ct. 2612 (2013). Yet, over time, the ruling in King may prove to be one of the court’s most important decisions, affecting tens of millions of average people in the United States for decades to come. For crime fighters it is a godsend, and for Fourth Amendment
purists, it is yet another invasion on our sacred expectation of privacy. At issue in King was a Maryland statute that permits police agencies to secure a DNA sample via a cheek swab from individuals who have been arrested for certain serious criminal offenses. The respondent, Alonzo King, was arrested in 2009 on charges of aggravated assault and, as part of the routine booking procedure, he provided the police with a cheek-swab DNA sample. The sample tied King to an unsolved rape from 2003. In 2003, King broke into a woman’s home in Salisbury, Maryland, and raped her at gunpoint. The only evidence left at the scene was King’s DNA sample obtained from the victim. He was subsequently successfully prosecuted for the rape on the basis of the 2009 DNA evidence and sentenced to life without the possibility of parole. King moved to suppress the DNA match, arguing that the Maryland statute violated his Fourth Amendment right to be free from unreasonable searches, but the Circuit Court judge held the statute constitutional. Thereafter, the Maryland Court of Appeals set aside the conviction based on the fact that the DNA taken during the 2009 arrest was an unlawful seizure because the use of a buccal swab to take DNA from the inside of King’s mouth was an unreasonable search of his person. The Supreme Court granted certiorari and reversed the judgment of the Maryland court. In sustaining the constitutionality of the Maryland statute, the court held (in a 5 to 4 decision) that the collection of a DNA sample is akin to the fingerprinting and mug shot procedures that are routine, reasonable and necessary adjuncts to police booking procedures. Accordingly, when officers make an arrest supported by probable cause to hold for a serious offense, and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is a legitimate police booking procedure that is reasonable under the Fourth Amendment. Writing for the majority, Justice Kennedy went on to note that the utility of DNA samples in advancing the work of the criminal justice system is vast and vital. He stressed that the extraction of the sample is minimally intrusive and can provide complete accuracy in identifying suspects and arrestees. Correct identity and associated criminal case histories are essential components of bail, detention, classification and sentencing decisions. Law enforcement efforts are also served through the use of DNA in the neverending effort to solve crimes, locate fugitives, free the wrongly-convicted and eliminate the innocent from suspicion. According to the court, all 50 states have some procedure for collecting DNA samples from people who have been convicted of criminal offenses. Many fewer have statutory procedures that authorize the taking of a sample from those who have been merely arrested and charged with a criminal offense. In New Jersey, the collection of DNA samples in a criminal case is controlled by the DNA Database and Data
bank Act of 1994, N.J.S.A. 53:1:20.18 et seq. Although every adult and juvenile convicted of a criminal offense in New Jersey is required to provide a DNA sample, the taking of a sample following an arrest is permitted in only a few limited circumstances. Under an amendment to the statute that went into effect in February of this year, preconviction DNA samples may now be taken as a condition of release from adults and juvenile defendants who have been arrested for the following: • murder, N.J.S.A. 2C:11-3; • manslaughter, N.J.S.A. 2C:11-4; • aggravated sexual assault and sexual assault, N.J.S.A. 2C:142; • aggravated criminal sexual contact and criminal sexual contact, N.J.S.A. 2C:14-3; • aggravated assault of the second degree, N.J.S.A. 2C:12-1; • kidnapping, N.J.S.A. 2C:13-1, • luring or enticing a child, N.J.S.A. 2C:13-6; • engaging in sexual conduct which would impair or debauch the morals of a child, N.J.S.A. 2C:24-4. The decision in King will afford our legislature the opportunity to expand the taking of DNA samples in the criminal justice system by gargantuan proportions. The legislature could conceivably now require DNA samples from every person who has been arrested for any crime, serious disorderly persons offense or even
drunk driving. While the law enforcement benefits of tens of thousands of additions to the general DNA database could be substantial, the loss of privacy and worries about governmental misuse of the data should also be of great concern. For example, DNA information could be used to predict future health challenges, life span and susceptibility to certain diseases. These data could be used to gauge premiums for life and health insurance. They could even affect potential employment or suitability for political office. In sum, as technology advances at light-speed, DNA samples may reveal much more than we’re prepared as a society to share with the government. So, let the debate begin. Although there is no denying the importance and utility of DNA evidence in the criminal justice system, the civil liberties issues and privacy risks are stark. As Justice Scalia noted in his stinging dissent in King: Today’s judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane, applies for a driver’s license, or attends a public school. Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.
Peyrouton is a criminal-defense and immigration attorney in Union City.
Reprinted with permission from the DECEMBER 23, 2013 edition of New Jersey Law Journal . © 2013 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.
Hey, fellow defense attorneys! Here's a quick question. Have you ever walked into a municipal prosecutor's office and found yourself surrounded by a dozen or more police officers? Do you recall how you felt? If you were intimidated or felt that any plea negotiations would be futile, you're not alone. Throughout every county in New Jersey, there are municipalities where the prosecutor allows every police officer summoned to court on that day to hang around and sit in on plea negotiations. The practice of allowing so many officers to attend plea negotiations creates an appearance of police-dominated justice and has a chilling effect on good-faith plea negotiations. If you, as a professional defense attorney, feel uncomfortable, how do you think apro se litigant feels? Inevitably, pro se litigants walk in to a room full of police officers and feel that the system is stacked against them. The New Jersey Supreme Court has written time and time again that municipal court is the only contact with the judiciary that most New Jersey residents will ever have. Given this fact, the need for prosecutors to present a fair and unthreatening environment becomes mission critical. People in a free society must feel at liberty to express their feelings to the prosecutor during plea discussions, especially if those feelings involve complaints or a misunderstanding about the police and their practices. A crowd of police officers in the prosecutor's office, who perform no function other
than hanging out and waiting around, tends to stifle this type of communication. Let's be clear. This is a problem of perception. There is no master plan or agreement between the prosecutors and the police to intimidate anyone who comes to municipal court. The practice of local and state police loitering in some particular office, while the prosecutor attempts to negotiate case dispositions a few inches away, is simply a matter of tradition. In some municipalities, it's the way they've always done things without giving the situation much thought. In others, it's a matter of convenience and part of the social dynamic of municipal courts in New Jersey. The benefits of this collegial atmosphere among the police is often lost on nervous, pro se defendants who seek to negotiate a deal for themselves while surrounded by an intimidating cadre of police. The lack of privacy and the presence of so many officers send the message that the prosecutor and the police, working in tandem, will control the outcome of the case, as opposed to facts, law and fairness. It is important to remember that the municipal court prosecutor is not a police officer. It is the prosecutor who must independently evaluate probable cause, determine the appropriate charges, offer plea agreements and decide which cases do not merit prosecution. When the police are wrong, it is the duty of the prosecutor to let them know. It is the prosecutor, not the police, who must always comply with RPC 3.8. It is the prosecutor, not the police, who is duty-bound to work individual justice in individual cases. More than a quarter century ago, the Supreme Court promulgated a series of guidelines for municipal court plea-bargaining. Guideline 3 discusses the prosecutor's responsibilities. It states: Nothing in these guidelines should be construed to affect in any way the prosecutor's discretion in any case to move unilaterally for an amendment to the original charge or a dismissal of the charges pending against a defendant if the prosecutor determines and personally represents on the record the reasons in support of the motion. The New Jersey Supreme Court added a comment to these guidelines, in 1990, to further clarify the role of a municipal prosecutor. The justices wrote: It is recognized that it is not the municipal prosecutor's function merely to seek convictions in all cases. The prosecutor is not an ordinary advocate. Rather, the prosecutor has an obligation to defendants, the state and the public to see that justice is done and truth is revealed in each individual case. The goal should be to achieve individual justice in individual cases. In discharging the diverse responsibilities of that office, a prosecutor must have some latitude to exercise the prosecutorial discretion demanded of that position. It is well established, for example, that a prosecutor should not prosecute when the evidence does not support the state's charges. Further, the prosecutor should have the ability to amend the charges to conform to the proofs. In 2004, the Supreme Court amended both Rule 7:6-2(d) and Guideline 3 to eliminate the need for police officers to consult with prosecutors about every plea disposition. The idea behind the changes was to keep police officers on the street and prosecutors meeting with the public so that the municipal court could run efficiently. This is the reason why prosecutors are permitted to use plea forms in municipal court to this day. Apart from socializing, there is no longer any legitimate need to have police officers waiting around, en masse, in the prosecutor's officer. Once we recognize this problem and its great potential for harm, the solution becomes obvious. The congregating of police officers in the municipal prosecutor's office is a law enforcement issue that should be addressed by the executive branch of government. One simple fix comes in the form of a directive from the county prosecutor's office, directing all municipal prosecutors to only allowthe officer involved in a given case to be present for that case, if and when he is needed for disposition. A quiet, thoughtful environment where prosecutors, defense attorneys and pro se litigants can conduct their private discussions in an atmosphere of austerity and professionalism will likely enhance the unique municipal court experience for everyone involved. It is time to break with tradition and give our plea negotiations more privacy. ■
Peyrouton is a criminal-defense and immigration attorney in Union City.
MARCH 26, 2015 NJLJ.COM statewide legal authority since 1878 Privacy Plea(se)
Reprinted with permission from the March 26, 2015 edition of the NEW JERSEY LAW JOURNAL. © 2015 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877.257.3382, email@example.com or visit www.almreprints.com. #151-08-15-06
Defense attorneys should be aware that an application for a conditional discharge, a conditional dismissal or pretrial intervention (PTI) in Superior Court is a once-in-a-lifetime opportunity. New Jersey defendants are entitled to only one diversion from the criminal justice system. Using a diversionary program usually provides the defendant with a positive result in his case. Upon completion of the term of the diversion, completion of community services or other conditions imposed by the court and upon payment of all court fees, the charges are dismissed. Six months thereafter, the defendant can seek an expungement of the arrest and related charges. Attorneys should also know that an application for a conditional discharge or conditional dismissal can be made before, after or even during a trial. With this in mind, some attorneys will quickly take the path of least resistance in a drug case and seek a conditional discharge at the earliest possible moment in the case. Notwithstanding their ethical duties to their client, some attorneys never file a motion to suppress, properly review discovery, or even try the case when their client is eligible for a conditional discharge. Sure, the conditional discharge option provides an easy, virtually guaranteed result. But is a conditional discharge/dismissal always the best route? Imagine for a second that controversial football
player Ray Rice had been your client before he was drafted to the National Football League (NFL), and before he knocked his girlfriend out in an Atlantic City hotel elevator. If you had represented him as a teenager on a drug paraphernalia charge and negotiated a conditional discharge for him, he would not have been eligible later in life for pretrial intervention, an option that may have well saved him from a jail term. Obviously, if after careful review of a client's case, you determine that any motions to suppress (MTS) would be frivolous or without merit, perhaps then you could discuss plea offers with the prosecutor. If facts or case law support a reasonable MTS, then by all means comply with your duty of zealous advocacy for your client and make your motion. Even if your motion is denied or you lose at trial, you may still make application on your client's behalf for a conditional discharge. N.J.S.A. 2C:36A1(2) provides that a defendant may be placed on supervisory treatment either after a plea of guilty or finding of guilty. Familiarity with your judge's prior rulings regarding his/her willingness to grant a conditional discharge application post-trial, and after a finding of guilty, would be of tremendous assistance in this decision-making process. Another alternative is that you may forgo your motions and waive your right to a trial in order to make a straight application for the conditional discharge/ dismissal program and eliminate the problem instantly. The first time people are handcuffed and arrested can be an extremely traumatizing experience. Quite often, defendants do not want to go to court and present their defense. Rather, they insist on making the whole thing disappear as quickly as possible. As a defense attorney, it is of critical importance to make certain your client understands that once he uses his "get out of jail free card," he will never have another one for the remainder of his life; at least as far as New Jersey is concerned. Invest a considerable amount of time and effort to explain to your client the direct and collateral consequences of availing himself of the diversionary programs offered in New Jersey. Here's an alternative that may appeal to the interests of your client's career, or more importantly, his freedom. Plead your client guilty to the disorderly persons' offenses (DP) or petty disorderly persons' offenses (PDP) that he is charged with, pay a fine and forever give up his/her use of the conditional discharge/dismissal program. As far as his/her record is concerned, five years will have to pass until the DP or PDP can be expunged. However, if your client is ever charged with a serious criminal offense later in life, PTI will still be an option. Lose one battle, but win the war. Under N.J.S.A. 2C:43-12(a), a defendant is not eligible to make application for PTI if he/ she has been previously convicted of a crime and under 2C:43-12(g), defendants are not eligible if they have already participated in any diversionary
program. What constitutes a crime? N.J.S.A. 2C:14 (a), defines a crime as an offense for which a sentence of imprisonment in excess of six months is authorized. Crimes are designated as being of the first, second, third or fourth degree. Under subsection 2C:1-4(b) a DP, as well as a PDP, are not crimes within the meaning of the New Jersey Constitution. The maximum term of imprisonment for DPs and PDPs does not exceed six months. To clarify the aforementioned, if your client pleads to a DP or PDP, he may lose his eligibility for the conditional discharge or conditional dismissal program but still preserve his eligibility for PTI. Ray Rice used his once-in-a-lifetime "get out of jail free card" by applying for PTI and being admitted. Upon successful completion of the terms of his participation in that diversionary program, his charges will be dismissed. Had you represented him on the DP or PDP and encouraged him to avail himself of a diversionary program, PTI would never be an option. Admittedly, none of us has a crystal ball showing what the future holds for a client. If you can preserve your client's opportunity to take advantage of a diversionary program until he/she really needs it, then you must exhaust all possibilities before making application for that program. Use Ray Rice as an example every time a client asks you to provide him with options. Would Ray's career, life and future turned out differently had he not had the option of PTI? We will never know. ■
Peyrouton is a criminal-defense and immigration attorney in Union City.
JUNE 4, 2015 NJLJ.COM statewide legal authority since 1878 The High Cost of Getting Out of Jail Free
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Reprinted with permission from the June 4, 2015 edition of the NEW JERSEY LAW JOURNAL. © 2015 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877.257.3382, firstname.lastname@example.org or visit www.almreprints.com. #151-08-15-07
Like discovering the proper charge for a motorist refusing to submit to a breath tesT
Footnotes, like bazaar emporiums, can contain hidden treasures. The best part about both is that you never know when you're going to stumble on something precious. It's the innocuous-seeming footnote, similar to the unassuming and faded painting, that turns out to be a priceless find. Recently, I stumbled upon an inconspicuous footnote, in an unpublished appellate division decision, that made me vow to read every single footnote I would ever come across. Little did I suspect when reading this footnote that I was going to uncover a mother lode. In State v. Lesser, A-4162-13T4 (App. Div. 2015), the defendant was arrested for DWI and subsequently charged with a refusal. In footnote two of the Lesser decision, the court wrote that the defendant was erroneously charged with a refusal under N.J.S.A. 39:4-50.2; and clarified that "the correct citation is N.J.S.A. 39:4-50.4(a)." Upon reading this footnote, I simultaneously experienced jubilation and frustration. Elated for having discovered a gold mine, I was equally flustered for not having discovered it earlier. I have seen countless tickets for 39:4-50.2 (charging my client with a refusal) and never thought twice about it. Immediately upon discovering footnote two at
the end of Lesser, I remembered the issues raised, discussed, and decided in State v. Nunnally, 420 N.J. Super. 58 (App. Div. 2011). There, the court explained that 39:4-50.2 is the implied consent statute; it is not the statute to be used for charging a motorist with a refusal. The implied consent statute is made up of four essential elements that must be satisfied before the police may charge the defendant with a refusal pursuant to 39:4-50.4a. Under 39:450.4(a), "the municipal court shall revoke the right to operate a motor vehicle of any operator who, after being arrested for a violation of 39:4-50 or 39:450.14, shall refuse to submit to a test provided for in section 39:4-50.2 when requested to do so." The four essential elements under the implied consent statute (39:4-50.4a) are the following: (1) the arresting officer had probable cause to believe that defendant had been driving or was in actual physical control of a motor vehicle while under the influence of alcohol or drugs; (2) defendant was arrested for driving while intoxicated; (3) the officer requested defendant to submit to a chemical breath test and informed defendant of the consequences of refusing to do so; and (4) defendant thereafter refused to submit to the test. Once the four elements outlined above are satisfied, only then can an officer charge a defendant with a refusal under 39:4-50.4(a). So why not just amend the complaint to the correct statute and avoid the risk of losing the refusal charge on account of defense counsel's motion? It can be done, but the prosecutor must catch the error within the time set forth under N.J.S.A. 39:5-3. Putting aside a handful of exceptions, the state has a maximum of 90 days to amend or make changes to the original complaint, or to substantive offenses other than lesser included offenses. Rule 7:14-2. A complaint for refusing a breath test must be made within 90 days after the commission of the offense, pursuant to N.J.S.A. 39:5-3(b). This provision operates as a functional statute of limitations in that it bars prosecution unless the process is issued within the time limit. State v. Wallace, 201 N.J. Super. 608, 611 (1985). "[O]nce service of process occurs within the mandated time, i.e., 'timely notice of the allegations charged' is received by the defendant, formal errors or omissions may be corrected within a reasonable time." State v. Buczkowski, 395 N.J. Super. 40, 43-44 (App. Div. 2007). Construing the two rules in pari materia, we conclude that a failure to cite the correct substantive offense is not a "technical defect" subject to amendment under Rule 7:2-5 or Rule 7:14-2. Further, allowing an amendment to cite a different offense is fundamentally different than amending to correct a minor defect, such as the lack of a signature or naming the wrong jurisdiction in which the offense occurred. Nunnally, supra. The cases that have allowed amendments under Rule 7:2-5 or Rule 7:14-2 clear up any confusion as to what constitutes a technical amendment. In State v. Fisher, 180 N.J. 462, 464 (2004), for example, the court held that a police officer's failure to sign a complaint was a technical defect that could be cured by amendment. In reaching that conclusion, the court considered that the complaint, though unsigned, adequately put the defendant on notice of the charges against him, thereby "safeguarding the defendant's right to procedural due process." Further, allowing an amendment to add the signature would not interfere "with his defense on the merits." Fisher cited similar cases permitting amendment where an officer failed to sign a DWI summons, State v. Latorre, 228 N.J. Super. 314 (App. Div. 1988), and where the complaint listed the wrong municipality as the location of the offense, State v. Ryfa, 315 N.J. Super. 376 (Law Div. 1998). See also State v. Vreeland, 53 N.J. Super. 169 (App. Div. 1958) (listing the wrong municipality on the complaint). So what does this mean to practicing defense attorneys? Instead of retaining expensive experts to testify on behalf of the defense as to why or how the Alcotest was improperly administered; or instead of agreeing to the dismissal of the refusal as part of the plea deal; following the precedent in Lesser and Nunnally, you may want to do nothing and just wait. Given the fact that many police departments mistakenly charge a refusal under the implied consent statute, a strong argument could be made that it is an incorrect charge as it is not an offense. If the 90-day statute of limitations has expired under N.J.S.A. 39:5-3, then it cannot be amended, and the refusal should be dismissed under Nunnally. So the next time you're reading an opinion in a frantic frenzy to find the exact legal principle that you're looking for, sloooow down and heed the advice of the securely nestled footnote sitting idly at the bottom of the page. Who knows? It may be a Rembrandt. ■
Peyrouton is a criminal-defense and immigration attorney in Union City.
AUGUST 12, 2015 NJLJ.COM statewide legal authority since 1878 That Overlooked Footnote May Be a Masterpiece Like discovering the proper charge for a motorist refusing to submit to a breath test
Reprinted with permission from the August 12, 2015 edition of the NEW JERSEY LAW JOURNAL. © 2015 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877.257.3382, email@example.com or visit www.almreprints.com. #151-08-15-08
Recently, after driving in the rain for 45 minutes across three counties and merging on and off four highways, I finally arrive within walking distance of municipal court. I look at my watch and I’m 15 minutes early. Court doesn’t start until 6:00 pm. I ignore my anxious client’s calls to my cellphone while I park my car. I grab the file, straighten my tie and run up the stairs of the municipal court. The same guards who see me week-in and week-out wave me in to court. I see my client in the back pew. He’s irritated and annoyed. I don’t blame him. After all, this is our fourth appearance on a simple assault 2C:12-1(a), and the alleged victim has never come to court. I comfort him. “Mr. Doe, don’t worry, I’m going to make a motion to dismiss for lack of prosecution.” He leans over and whispers, “That would be great. I can’t keep missing work like this.” I meet with the prosecutor and he calls out the victim’s name. Silence…. Okay, we’re halfway home. At 7:30 p.m., a court officer finally shouts, “All rise!” “Patience,” I tell myself, “in a few minutes this case will be dismissed.” The judge, a real-estate attorney with a longstanding friendship to the local mayor, announces, “Number 29, John Doe.” That’s my case! I tap my client and escort him up to the bench. I enter my appearance as the judge glosses over the file.
“Your honor, this is our fourth appearance and the alleged victim is not here. At this time, I’d like to make an application to dismiss for lack of prosecution.” I start to make a notation in the file when I hear, “Motion denied.” Did I hear correctly? What is the basis? Courteously, I advocate, “Your honor, this is our fourth appearance, the alleged victim has been noticed every time, and has failed to appear. In the interest of judicial economy, can the court reconsider the motion?” “No. Under New Jersey state law, this court cannot dismiss unless the matter is scheduled for trial. Do you want to speak again with the prosecutor?” Now, my heart is racing. I’ve never heard of such a rule. In fact, under 7:8-5, “A complaint may be dismissed by the court for good cause at any time on its own motion, on the motion of the state, county or municipality or on defendant’s motion.” The courtroom is packed. My client is eager to be done with this and, after waiting for nearly two hours, I’d like to be done as well. So it’s a game-time decision and I’m not sure how to handle it. I appear before this judge quite often, and I don’t want to be blacklisted. For the same reason, I’m aware of how often he makes up the law and abuses his power. Earlier this year he assessed a nonexistent fine to one of my clients. He has also berated and ridiculed men for having long hair and earrings. One summer, he ordered a 20-year-old boy to go home, change his clothes and
return within the hour. It is his policy not to allow anyone entrance into his courtroom if they’re wearing shorts and sandals despite the fact that it’s over 100 degrees outside. The visceral part of me wanted to tell him that he did not deserve the robe he was wearing. Judicial robe syndrome is prevalent in New Jersey. It’s particularly prevalent at the municipal level, where mediocre attorneys with strong political connections are appointed to a bench. Once that robe goes on, they believe themselves to be superior beings. Irrespective of the fact that they know virtually nothing about Title 2C or Title 39, they’re appointed, and that robe serves as permission to play God for a few hours each week. I witnessed one judge pontificate about the extensive powers he is possessed with and when my client rolled his eyes, the judge slapped him with a $200 fine for contempt. Another municipal court judge chews gum incessantly. When anyone appears before her and she catches him chewing gum, she rips him a new attitude. She often strolls in to court, aloof and, on average, an hour late. Then she’ll go in to chambers and play with her iPhone for another half hour while the court room is full of people waiting. Once she takes the bench, she pounds her gavel and demands silence. She makes up the law, too, but what is an attorney supposed to do in these situations? All over the state, attorneys face similar situations. Judges are human and are allowed to make mistakes. But what if their mistakes are egregious? As decided in In Re Dileo, (Jan. 27, 2014), the Supreme Court of New Jersey wrote the following:
Although legal error is not typcally grounds for discipline for judicial misconduct under Code of Judicial Conduct, legal error that is egregious, made in bad faith, or part of pattern or practice of legal error has capacity to detrimentally affect public confidence in judicial process; indeed, either pattern of incompetent or willful legal error or sufficiently egregious instance of such error can undermine public confidence in judiciary.
Back to my inquiry…what is an attorney supposed to do? Let’s take a look at the options: 1. File an interlocutory appeal under Rule 3:24. Of course, that requires additional expense for your client, including filings fees, transcript costs, preparation of a brief and oral argument. 2. Ask the judge to reconsider his ruling based upon the Rules of Court, established case law, statutory law, NJAC provisions or United States Supreme Court precedent. Each of these will prove a waste of time. 3. Complain to your local presiding judge, a path that you can only take sparingly and in the rarest of circumstances lest you be labeled a pest. 4. File a complaint with the ACJC, a procedure that will take months or years and often will require your public testimony. 5. Go the political route and speak out against the judge and his reappointment during a public session of the municipal government. 6. Write an anonymous letter to the assignment judge with copies to the Chief Justice and the Acting Administrative Director of the Courts. Actually, if they read your letter, they will refer it to the presiding judge for municipal courts. Do you think the municipal court judge will be able to figure out the complaint came from you? 7. Here’s an idea that will fail every time, due to judicial immunity: File suit against the judge and municipality for violating your client’s civil rights. I have a few new ideas to add to these options. Let’s create a random audit program in which plain clothes lawyers are appointed to observe certain courts. Retail stores save billions of dollars each year by hiring “loss prevention” employees. In essence, these employees secretly pose as shoppers and wander the aisles looking for shoplifters. New Jersey’s Administrative Office of the Courts should create a “judicial abuse prevention” team. Its officers would wander throughout our almost 900 municipal courts observing the abuse described above. Or what if the team randomly listens to the
court recordings? Let me be clear about one thing. Among the members of the municipal court judiciary are a large number of excellent jurists. They include legal scholars as well as polite, kind and courteous people who seek to do individual justice in every case, while treating everyone with kindness, consideration, fairness and respect. Simply put, they are angels. We accept adverse rulings from these judges because both you and your client understand that the judge gave fair and objective consideration to your arguments. You had your day in court and you lost, fair and square. What every person in New Jersey should detest is the arrogant, ignorant judge whose intoxication with judicial power renders him an unreasonable, nasty tyrant. These people undermine the public’s confidence in the judiciary. The people of New Jersey deserve better. If every disease has a cure, so does black robe disease. We have to be proactive and follow the advice of the signs we see everywhere from the Port Authority, “If you see something unusual, speak up.” Oh, and what happened to the judge who denied my motion to dismiss? I showed him a copy of the rule and he shrugged and with a fake smile said, “It still doesn’t apply here. Let’s bring you back (a fifth time) in two weeks.”■
Peyrouton is a criminal-defense and immigration attorney in Union City, N.J.
Black Robe Disease
Reprinted with permission from the AUGUST 25, 2014 edition of New Jersey Law Journal . © 2014 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.
New Jersey Law Journal
217 N.J.L.J. 563 NEW JERSEY LAW JOURNAL, AUGUST 25, 2014