Failure to Give Appropriate Breath Test Refusal Warning Can Result In Acquittal in NJ

Refusal to give a breath sample in a DUI matter carries substantial penalties including mandatory minimum 7 month loss of driving privileges and fines up to $500 for a first offense to a minimum 10 year loss of license to $1,000 fine for a third or subsequent offense. Additionally, if you refuse to submit a breath sample, you may still be convicted of DWI based on the officer's observations while you perform field sobriety tests. In the event you elect not to submit a breath sample into the Alcotest machine and are still charged and convicted with DWI, you will face a loss of license for each offense. Due to the severity of the penalties for refusal being akin to those for the underlying driving under the influence charge, the legislature has structured the warnings given in the event of a refusal to be of the same stricture as those issued for driving while intoxicated. In the recent case of State v. O'Driscoll, Harding Municipal Court Judge Gary Troxell found O'Driscoll guilty of refusal, DWI and possession of an open container of alcohol and Morris County Superior Court Judge Ironson affirmed the conviction on appeal. The Appellate Division overturned the conviction on the grounds that failure of arresting officers to read the current refusal warnings did not satisfy the intent of the legislature in the preparation and requirement of the specific statement regarding the consequences of refusal to submit to breath tests. DUI/DWI in New Jersey is not taken lightly and if you are arrested for these charges, or refusal to submit to a breath test, you should seek an experienced attorney to assist you in your defense. Selecting an attorney who knows your rights and is able to avoid a conviction based on mistakes by officers in their attempt to prove your guilt is the difference between keeping or losing your license, as well as a host of other problems that come with a refusal conviction in NJ. If you are charged with refusal to submit to the Alcotest or DUI contact an attorney immediately to protect your rights. For more information on Driving While Intoxicated or other serious municipal court/traffic matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.

How Long is Too Long To Seek Alimony After a Divorce in NJ?

A woman who obtained a Final Judgment of Divorce by default in 1974 filed a motion seeking alimony and child support in 2011 after locating defendant in a Google search. The plaintiff claimed defendant left the country in 1993 and she was unable to locate him. The defendant countered that he was only absent from the country for a few months, never changed his name and always listed his number in the phone book. The Superior Court ordered alimony from the time of the divorce through plaintiff's second marriage and child support from time of divorce until the children's 18th birthdays setting the arearage amount at $144,950. Defendant filed a motion for reconsideration which was granted and the order was vacated due to plaintiff's failure to assert her known right to seek financial support within a reasonable amount of time. Additionally, the plaintiff presented no evidence that she sought the defendant or financial support from him during the 37 years in between the divorce and her motion. Finally, the children are grown adults who had not seen plaintiff since 1974. In any legal matter, the doctrine of latches acts to prevent parties who have not made efforts to enforce their rights from unfairly prejudicing others by seeking relief much later when evidence is gone, great prejudice would result or other equitable reasons. If you believe you have a right to relief within the court, seek an experienced attorney immediately to insure you are not waiving your rights by failure to act. For more information on your legal rights in matrimonial, civil union, domestic partnership, child support, alimony, palimony or other family law matters in New Jersey visit HeatherDarlingLawyer.com.

Minimum Degree of Care for a Minor by a Parent in NJ

In a recent case, the New Jersey Appellate Court held that a parent appearing or being under the influence while children are in their care does not necessarily rise to the level that the Division of Child Protection and Permanency (DCPP, formerly known as DYFS)needs to become involved under N.J.S.A. 9:6-8.21(c)(4). The question that must be answered is whether the intoxication of the parent rose to a level that the parent failed to provide a minimum degree of care, when no actual harm has befallen the child, but instead only a risk of harm has been proven. The answer to this question must be viewed on a case by case basis taking into account the dangers and risks associated with the specific facts of the case. The parent's inebriation must directly cause their inability to care for their children. Justice Long held that "where a parent or guardian acts in a grossly negligent or reckless manner, that deviation from the standard of care may support an inference that the child is subject to future danger. To the contrary, where a parent is merely negligent there is no warrant to infer that the child will be at future risk." The DCPP must prove that the parent's condition was produced by a grossly negligent or reckless act that placed the child in imminent danger or substantial risk of harm. For more information on Division of Child Protection and Permanency, child support, spousal support, palimony, alimony, divorce, dissolution of civil union or domestic partnership or other family law matters in New Jersey visit HeatherDarlingLawyer.com. Post contributed by Doreen L. Neggia This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.

Early Expungement Factors in NJ

Expungement is a means of sealing criminal records for those who made an error in judgment. In order to qualify for an expungement, there is a waiting period, at least 5 years, which must pass without the commission of further crimes. New Jersey has relaxed the timeframe for expungement in certain circumstances. In considering early expungement, the court has set forth certain factors. The nature of the offense must be balanced against the petitioner’s overall character. At all times, it is the petitioner’s burden to prove they are deserving of an early expungement. The State is considered to have met it’s burden of proof at the petitioner’s trial. In the case of a petitioner previously convicted of dealing drugs, the New Jersey Supreme Court held that a lower court erred in considering factors the Legislature did not include in the carefully drafted statute. Although the nature of the drugs sold could not be considered, the number of times drugs were sold, whether they were sold to minors and weather there were weapons involved could be considered. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter. If you have a criminal record that is hindering your ability to obtain employment, the education you want or otherwise negatively impacting your life, you should consult an experienced criminal law attorney immediately in order to protect your rights. For more information on expungements or other criminal law matters, including municipal court matters, in New Jersey visit HeatherDarlingLawyer.com.

Speedy Trial Still the Rule in NJ?

A driver was stopped for speeding in Lincoln Park, New Jersey and charged with DUI as a result of the stop. In an effort to challenge the officer's probable cause to initiate the stop, the defendant sought discovery regarding the Stalker Dual SL model radar detection device used by the officer to determine his speed. After being convicted in the Lincoln Park Municipal Court, defendant sought a trial de novo and in the Morris County Superior Court, Law Division, Judge Philip J. Maenza found the defendant guilty of DUI and speeding. Defendant sought review by the Appellate Division under claim of violation of his right to a speedy trial. The Sixth Amendment of the US Constitution guarantees the right to a speedy trial which attaches at the time of arrest. In the case at hand, State v. Vanderkooy, the Appellate Division looked to the prior decision in State v. Szima, in which the New Jersey Supreme Court recognized the 4 factors, previously set forth by the US Supreme Court, as determinants of a speedy trial violation. The 4 factors are the length of delay, whether defendant asserted his right to a speedy trial and the prejudice, if any, caused to defendant by the delay. In the case at hand, much delay was caused by the need to establish the reliability of the radar detection device and neither party was to blame nor substantially prejudiced by the delay. If you are charged with a criminal or serious traffic offense you should contact an attorney immediately to protect your rights. For more information on your right to a speedy trial when facing criminal charges or serious traffic charges including Driving Under the Influence in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.

Gay Marriage Cases to Be Heard By US Supreme Court in 2013

2013 will definitely be a year to remember as the United States Supreme Court announced it has decided to hear two gay marriage cases, California's ban on gay marriages and the challenge to the federal Defense of Marriage Act (DOMA). Although not New Jersey cases, the impact for New Jersey residents could be considerable. Even though New Jersey recognizes Civil Unions, same-sex marriages are not recognized. In addition, Domestic Partnerships that were previously entered remain valid, however, new domestic partnerships are available only to couples in which both partners are at least 62 years old. In reviewing DOMA, enacted in 1996, the US Supreme Court will review the way things such as health insurance, medical leave, taxes and similar issues will be handled for same-sex couples. President Obama publicly announced his administration would no longer defend DOMA, as it violated the equal protection guarantees of the United States Constitution, and multiple state courts have declared the law unconstitutional. In reviewing California's Proposition 8 matter, the Supreme Court will directly address the fundamental question of whether same-sex couples have the right to marry. Although the New Jersey Senate and the New Jersey House of Representatives passed the Marriage Equality and Religious Exemption Act, Governor Chris Christie vetoed it. Governor Christie made clear his choice was not to allow "political maneuvering" to decide the issue but to allow LGBT proponents to bring the issue to the ballot where the people of New Jersey can make the final decision on whether same-sex marriage will stand in this state. For information regarding same-sex law in New Jersey, including civil unions, domestic partnerships, adoption, dissolution, custody, child support, support agreements, property division or other legal concerns of gay, lesbian, bisexual, transgender couples in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.

Criminal Charges Can Affect Your Immigration Status in NJ

Failure to understand immigration consequences is not always the reason for pleading guilty to criminal charges in New Jersey. The case of State v. Nunez-Valdez (200 N.J. 129 (2009)), resulted in substantial changes in the way criminal pleas are handled where there may be negative immigration consequences. In a case where defendant, in the country illegally at the time, was charged with third degree burglary, third degree resisting arrest and second degree attempted aggravated arson to and entered a plea to third degree burglary and fourth degree defiant trespass in the Hudson County Superior Court. The plea agreement permitted the State to argue that the court sentence defendant to a term of up to three years but defendant's lack of criminal record made it likely defendant's argument for a probationary sentence involving participation in an alcohol abuse program would prevail. At sentencing, defendant stated he was aware intoxication might be a defense to some of the charges included yet waived the right to assert that defense. Defendant later made application for his green card then was arrested by Immigration and Customs Enforcement (ICE) and detained at the Essex County Correctional Facility as a result of the Hudson County conviction. At that time, defendant began to assert his innocence and stated he would never have entered a guilty plea had he known the immigration consequences. The New Jersey Appellate court found defendant knowingly and voluntarily entered the guilty plea in order to receive a probationary sentence rather than incarceration. They Appellate Court also decided that any immigration consequences to defendant could not be linked directly to the guilty plea due to the passing of years between the plea and the detention. Criminal charges of any kind, including shoplifting, should not be taken lightly if you are not a U.S. citizen. If you are not a U.S. citizen and you have been charged with a crime you should seek an experienced criminal defense attorney immediately to protect your rights and immigration status. For more information on criminal or municipal court/traffic matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.

U.S. Supreme Court Justices Meet Today to Consider Same-Sex Marriage

The U.S. Supreme Court Justices will meet today to decide whether they will accept any of 10 appeals pending before them regarding same-sex marriage. If any of the appeals is accepted, the argument will be whether there is a fundamental constitutional right to gay and lesbian marriage. Although six states have approved same-sex marriage and other states have approved various forms thereof which do not afford all rights associated with heterosexual marriage, there is presently no recognition by the federal government of same-sex marriage. Lack of recognition of same-sex marriage by the U.S. government deprives gays and lesbians of the benefits of obtaining spousal social security benefits, pension benefits, family medical leave protection, filing joint federal tax returns and bankruptcy benefits. Deprivation of these benefits to those in long-term, monogamous same-sex relationships can have devastating results over a lifetime. If any of the appeals is accepted, no decision will likely be made until the middle of 2013 but same-sex partners around the country await the Justices decision on the appeal today. For information regarding same-sex law in New Jersey, including civil unions, domestic partnerships, adoption, dissolution, custody, child support, support agreements, property division or other legal concerns of gay, lesbian, bisexual, transgender couples in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.

DWI Acquittal Results in Dismissal of Vehicular Manslaughter Case In NJ

Defendant was charged with DWI, vehicular manslaughter, possession of marijuana, paraphernalia, reckless driving and CDS in a motor vehicle. Defendant was acquitted of the DWI but was found guilty of all charges. Defendant appealed the vehicular manslaughter charge because the Model Jury Charge did not instruct that the DWI acquittal needed to be taken into account. The New Jersey Appellate Court held that the erroneous instructions relative to the DWI constituted reversible error. The Appellate Court also found that instructing the jury on the concept of "recklessness" without comparison to the concept of "negligence" was erroneous. The conviction for vehicular manslaughter was vacated. DUI/DWI in NJ is not taken lightly in any case and can have significant implications in related matters such later personal injury or vehicular manslaughter charges. If you are charged with DUI in NJ you should seek an experienced attorney immediately to protect your rights. For more information on Driving While Intoxicated, reckless driving or other serious municipal court/traffic matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.

Child Support Modifications Are Not Retroactive in NJ

In a post-judgment motion for modification of child support the court imputed plaintiff, a nurse with no demonstrated disabilities income of $65,000, for purposes of calculating child support and imputed defendant, a painter, $35,000 for purposes of calculating child support. The court modified child support according to the incomes imputed and made it retroactive to a date preceding the filing of defendant's modification motion. The New Jersey Appellate Court reversed the retroactive modification as contrary to New Jersey Statue 2A:17-5:6.23a which limits the modification of child support to the date upon which a motion for modification is filed. The court also reversed the imputation of income to defendant because it was not supported by his case information statement. If you are seeking or fighting a change in child support, you should consult an experienced family law attorney immediately in order to protect your rights. For more information on child support, custody, parenting time/visitation, adoption, dissolution of a civil union, marriage or domestic partnership, modifications, alimony, palimony or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.

Conviction For Armed Robbery While Unarmed in NJ?

This case begins like a good joke: An unarmed man walks into a bank and hands the teller a note saying "I've got a bomb- hand over the money." Only in this case the bank was real, the man was real, the teller was real and the penalties are real. The only thing that was not real was the bomb but the man was convicted of first-degree armed robbery by simulation and was sentenced to 14 years. The New Jersey Appellate Division was more forgiving and reversed the conviction as it seemed unreasonable to them, given the circumstances, that the teller could believe the man had a bomb. Their reasoning is that a conviction would require conduct or something indicating the weapon alleged was present. The prosecutor's office argued that bombs are sophisticated these days and have been hidden in shoes and undergarments to be later identified on airplanes and that, failure to see a large ticking device no longer means a bomb is not present. This very well may become an issue ripe for change in the future If you are a defendant in an armed robbery case, you should consult an experienced criminal law attorney immediately in order to protect your rights. For more information on robbery, armed robbery, burglary, theft, shoplifting or other criminal law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.

Past Due Support Can Affect Your NJ Business

If you are obligated to pay child support to a former spouse or domestic partner you, and your business partners, may be shocked when your business interest is attached by them. Although they may only attach your interest, a former spouse or partner who obtains a judgment against you for past due child support can affect your business by tying it up in litigation and creating strife among you and the other members of your limited liability company (LLC). New Jersey Statute 42:2B-45 allows a judgment creditor to attach the interest of a debtor in any limited liability company in which they are a member. This judgment will not attach to the interest of any other LLC members but litigation as to what your specific interest in the LLC is can create enough tension to result in dissolution, or your being forced out of the LLC by the other members. If you are seeking to collect or defending against collection of a large amount of past due child or spousal support you should contact a family law attorney with small business divorce experience immediately to protect your rights. For more information on child support, spousal support, palimony, alimony, divorce, dissolution of civil union or domestic partnership or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.

Confession of a Juvenile Sex Offender Without Parents is Admissible in NJ

The Union County Prosecutor's Office contacted a juvenile's parents regarding an alleged sexual assault committed by the 13 year old boy, A.W. The child's father, whose first language is Spanish, voluntarily brought A.W. to the Union County Child Advocacy Center for an interview. The standard for confessions of a juvenile under 14 is that they are presumed inadmissible unless a parent or guardian was unwilling or unable to be present. This interview began in the presence of the father and discussion was in Spanish because the father speaks very little English. As the interview continued, A.W. offered his denials of any sexual conduct with the victim in Spanish but began to provide the detective conducting the investigation information in English. The detective then advised that even if the allegations were true, A.W. would likely receive therapy but not face juvenile detention or jail. The detective next began making reference to the domineering size of the boy's father and the fact that the father's presence may render A.W. fearful of consequences. In English, A.W. offered to speak candidly with the detective if his father was not there. The detective explained to the father, in Spanish, that A.W. wished to speak with her without his father's presence and presented the father with a waiver of his right to be present upon which she required his signature before he left the room. Once alone with the detective, A.W. admitted to touching the victim's vagina. The confession resulted in a charge of aggravated sexual assault as a juvenile, a conviction, 3 years of probation and Megan's Law, N.J.S.A. 2C:7-1 to 11 and 19. A.W.'s motion to suppress the videotape of the interview was upheld by the N.J. Supreme Court on the grounds that the father willingly and voluntarily left the room. If a juvenile is charged with a crime, the disposition of the charges can change his or her future by prohibiting them from entering certain schools, fields of employment and, in the case of Megan's Law offenses, certain residences or neighborhoods. It is critical for any juvenile charged with a criminal offense to seek an experienced juvenile defense attorney immediately to begin protecting their rights and their future. For more information on juvenile offenses, sex-offenses, Megan's Law provisions or other criminal charges in NJ, visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.

Emancipation Event May Be Defined By Parties

A father’s motion to emancipate his son was remanded to the trial court for a hearing as to the parties’ intent. The New Jersey Appellate Court held that the parties could define an emancipation event and each party’s intent at the time the agreement was formed required consideration by the trial judge. The Appellate Court further held that, in considering this emancipation request of a 19 year old taking only one class at Bergen Community College and estranged from the father seeking the emancipation, the Family Part Judge could not interpret the parties’ Marital Settlement Agreement without a plenary hearing. The Appellate Division set forth the factors the trial court must way in making a decision as to whether continuing child support at the agreed upon, or existing, level is equitable. The factors include whether any change in income is permanent or temporary, whether any reduction of income on the part of either party is in bad faith, whether any change in income was voluntary and the obligor's ability to pay at the time of the motion for reduction. If you are seeking or fighting a change in child support, you should consult an experienced family law attorney immediately in order to protect your rights. For more information on child support, custody, parenting time/visitation, adoption, dissolution of a civil union, marriage or domestic partnership, modifications, alimony, palimony or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.

NJ Senate Passes Mandatory 25 years to Life for Aggravated Sexual Assault of Child Under 13

On October 4, 2012 the New Jersey Senate passed "The Jessica Lunsford Act". This Act modifies N.J.S. 2C:14-2 to require a mandatory minimum sentence of 25 years for the aggravated sexual assault of a child under 13. The intent of the sponsors of the bill is to punish those committing the "repugnant" crime of sexual assault of a young child by denying such "monsters" the opportunity to re-offend. The Legislation was passed 7 years after the brutal rape and murder of 9 year old Jessica Lunsford of Florida. The bill was sponsored by Senators Steve Oroho (R-Sussex), Tom Kean, Jr. (R-Union) of and Diane Allen (R-Burlington). The "Jessica Lunsford Act" is now before Governor Chris Christie for final approval. Sex offenses bear penalties which will affect you for the rest of your life, even if you reach a plea agreement that may seem favorable at first glance. If you have been charged with a sex crime you should consult an experienced criminal defense attorney immediately in order to protect your rights. For more information on criminal law matters, including municipal court matters, in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.

Must You Provide A Urine Sample in A NJ DUI Arrest?

On July 2, 2012 the New Jersey Appellate Court heard the case of State v. Verpent (A-3807-10T4). Verpent was found guilty of DUI and challenged the failure of Bergen County Superior Court Judge Jerejian to suppress the lab results from his urine sample. The Appellate Division upheld prior cases requiring the submission of urine and its use in proving Driving Under the Influence Cases. Once an officer's observations lead to a conclusion that an individual is under the influence of intoxicants, the officer may request the performance of field sobriety testing in the event that the officer believes the individual may safely perform the tests. If the field sobriety tests provide further evidence of intoxication, the individual will be asked to provide a breath sample into an Alcotest device. If the individual's blood alcohol level (BAC) is under the legal limit or non-existent and the officer believes drugs may be causing the inability to perform tests, a Drug Recognition Expert (DRE) will then perform further testing along with obtaining urine and sometimes blood samples from the accused. N.J.S. 39:4-50.2(a) requires all drivers to consent to submission of urine and blood samples upon an officer's request. Although defendant challenged the taking of his urine without a warrant, the Court held that the officer's observations gave rise to probable cause to arrest and exigent circumstances justifying taking of a urine sample without a warrant under the theory that delay could result in "destruction of evidence." Although urine screens are not always accurate and the results are subject to challenge, the NJ courts have long required defendants in driving while intoxicated matters to provide urine specimens and there is "no federal constitutional right to prevent being required to giving a urine sample". State v. Malik (534 A.2d 27 (App. Div. 1987) DUI/DWI in New Jersey is not taken lightly and if you are arrested for these charges you should seek an experienced attorney to assist you in your defense. Selecting an attorney who knows your rights and is able to avoid a conviction based on mistakes by officers in their attempt to prove your guilt is the difference between keeping or losing your license, as well as a host of other problems that come with a refusal conviction in NJ. If you are charged with DUI contact an attorney immediately to protect your rights. For more information on Driving Under the Influence or other serious municipal court/traffic matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.

More Relief For Child Support Obligors in NJ

In a case where the child support obligor demonstrated to the court an obvious change of circumstances, the Family Part judge was required to conduct a hearing as to the details of the parties’ current circumstances. Due to a decline in the residential real estate market, the obligor suffered a significant and, likely long term change in circumstances. During that same time, the obligee had a large increase in income which was also likely to be a permanent situation. The Family Part judge denied the obligor the opportunity for a plenary hearing when deciding the matter. The New Jersey Appellate Division instructed that when a party seeking relief in the courts makes an obvious showing, otherwise known as a prima facie showing, of changed circumstances the trial judge is then required to fully consider the matter. If you are seeking or fighting a change in child support, you should consult an experienced family law attorney immediately in order to protect your rights. For more information on child support, custody, parenting time/visitation, adoption, dissolution of a civil union, marriage or domestic partnership, modifications, alimony, palimony or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.

Warrantless Search Without Danger Exceeds Community Caretaking Role of Police in NJ

Following receipt of an anonymous call about domestic violence, the police appeared at a New Jersey residence to determine whether there was danger to anyone. Upon arrival, police were met at the entrance to the apartments by the alleged victim. The alleged victim advised the police there were no problems at the residence and she was not in danger. The police found the circumstances to be curious, especially the fact that the alleged victim was at the door waiting for them, rather than inside with the other occupants. In order to determine whether the alleged victim was truly safe, the police insisted upon gaining entry into the apartment and were admitted into defendant's apartment by the parties' 11 year old child. Upon entry into the apartment, the police saw no signs of danger or unrest and no weapons were observed in plain view. At that time, rather than accepting that there was no actual danger present, the police violated defendant's rights by undertaking a warrantless search of the premises. The illegal search revealed a handgun under a pillow near the defendant and he was charged with a weapons offense. Only in the case of an emergency requiring immediate action by the police is a warrantless search permissible. The New Jersey Supreme Court held that this was an illegal search in violation of defendant's rights to enjoy the protections of the constitution relating to a person's home as offering a reasonable expectation of privacy from intrusion. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter. If you face criminal charges and believe that evidence against you was illegally obtained by police, you should consult an experienced criminal law attorney immediately in order to protect your rights. For more information on search and seizure, illegal search, warrantless search, domestic violence, anonymous tips or other criminal law matters, including municipal court matters, in New Jersey visit HeatherDarlingLawyer.com.

Gay NJ Man May Relocate to Gay Unfriendly State With Adopted Child Against Other Parent's Objections

In the recent case of A.G. v. R.R, (BER-FM-02-2258-09) the Bergen County Court ruled that a parent of primary residence with good intentions cannot be barred from relocating with the child to a state hostile to lesbian, gay, bisexual and transgender (LGBT) marriage without a showing of prejudice to the rights of the other parent. In A.G. v. R.R., the child was adopted while the parties were living in New Jersey, although they never entered into a civil union or domestic partnership. Upon separation, the parties entered into an agreement affording primary custody to A.G. and permitted him to relocate with the child from New Jersey to New York so that A.G. could pursue lucrative job opportunities. Following an injury rendering A.G. unable to perform the theater jobs for which he was well paid in New York, he received a lucrative job offer from an Atlanta, Georgia television production company and filed a Motion in the New Jersey Superior Court, Family Part, to relocate the child to Atlanta. R.R. opposed the Motion on the grounds that a 2004 amendment to the Georgia Constitution prohibits same-sex marriage and recognition of marriages of same-sex couples performed in other states. Judge Thurber held that the Full Faith and Credit Clause of the United States Constitution would require Georgia to uphold custody and parenting time orders issued by the New Jersey Courts. Judge Thurber rationalized that, if Georgia is hostile to the parental rights of R.R., he has a judicial remedy in the New Jersey Courts which have an interest in seeing their orders upheld. The Judge was careful to note that there was no example of a Georgia court refusing to recognize the rights of out-of-state adoptive parents. If you or your former partner are seeking to relocate a child against the wishes of the other parent, you should consult an experienced family law attorney immediately in order to protect your rights. For more information on adoption, child support, custody, parenting time/visitation, dissolution of a civil union, domestic partnership or marriage, modifications, alimony, palimony or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.

No Loss of NJ Drivers License for Out of State Offenses

In the event you are convicted of an out of state driving offense which subjects you to a suspended license in the state levying the charges against you, your New Jersey drivers license becomes subject to suspension. However, there is an important caveat: the offense for which you are found guilty must be one that would subject you to suspension if it occurred in NJ. In NJ, certain convictions such as controlled dangerous substances in a motor vehicle result in automatic suspension of driving privileges. States differ as to which convictions result in suspension of driving privileges within the state, therefore, convictions leading to suspension in one state may not require automatic suspension in other states. In the event your driving privileges are suspended in another state, New Jersey will receive a notice of suspension from that state. Upon receipt of notice of suspension in another state, NJ Motor Vehicle Commission (NJMVC) will mail, to the address appearing on your NJ drivers license, a notice of proposed suspension. This notice is prepared administratively by the NJMVC . What this means to you is that, although you receive a notice of suspension from the NJ Motor Vehicle Commission due to a suspension of your privileges in another state, the underlying conviction in the other state may not meet the statutory requirements for suspension of your driving privileges in NJ. If you receive a notice of suspension of your New Jersey driving privileges from the state of NJ as a result of an out of state suspension, you should contact an experienced municipal court defense attorney to determine whether the underlying charges give rise to loss of driving privileges in NJ. If the underlying charges do not require suspension of your driving privileges in NJ, you may continue to drive in NJ. More importantly, if you were charged with driving while suspended in NJ as a result of this situation, the NJ charges will be dismissed once you have resolved the original suspension issue. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter. If you face suspension of your NJ driving privileges, you should consult an experienced traffic law attorney immediately in order to preserve your ability to commute to work, transport your children, attend medical appointments and the like. For more information on motor vehicle, municipal court and other criminal law matters, in New Jersey visit HeatherDarlingLawyer.com.

Does Prenatal Use of Illicit Drugs Constitute Unfitness to Parent in NJ

The New Jersey Supreme Court heard the case of DYFS v. A.L., regarding whether prenatal drug use, specifically cocaine and marijuana, by a mother must result in a finding of unfitness to parent. Both the trial judge and appellate division ruled that the mother's prenatal use of cocaine resulted in abuse and neglect. The mother's attorney argued that a showing of harm to the child is required in order for the court to reach a determination of unfitness to parent. The State argued that prenatal use of drugs in the face of existing evidence of harm to children resulting from prenatal drug use is enough for a finding of unfitness to parent. A question raised by Justice Anne Patterson was also whether a pregnant woman legally taking prescription drugs, in spite of notice of potential danger to the child, could also be guilty of abuse and neglect. The State clarified that in the event there is harm to the child from a mother's use of prescription drugs, the mother's rights are protected. If you or your children's other parent are seeking a modification of custody, you should consult an experienced family law attorney immediately in order to protect your rights. For more information on DYFS,custody, divorce, dissolution of civil union or domestic partnership, alimony, child support or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.

Limited Duration Alimony Criteria Reaffirmed in NJ

The Court recently reaffirmed the principles behind an award of limited duration alimony. The wife worked in the husband’s medical practice as an office manager and administrator during the 9 year marriage. It was only toward the final years of the marriage that the parties began to enjoy affluence, after years of hard work to develop the business. During the marriage, the wife developed bipolar disorder and, at trial, obtained an employability expert to make the argument she was unable to work. The court considered that the wife did work during the marriage, even if it was limited to working in the husband’s office. The court further considered that, although the wife made claims of unemployability, the court was not convinced she was unable to work. The Appellate Court set forth the primary factors in consideration as the term of the marriage, the age of the supported spouse, and the short time during which the lavish lifestyle she wishes to continue existed during the marriage. In light of the factors set forth, the Court determined that limited duration alimony was appropriate, in spite of the husband’s substantial income at the time the marriage ended. If you are facing or considering a divorce, you should consult an experienced family law attorney in order to protect your rights. For more information on alimony/spousal support, divorce, dissolution of civil union or domestic partnership,child custody, child support or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.

No Change in Custody in NJ Without a Hearing

In order to make a change in custody from the arrangement set forth under the terms of a Court Order or Property Settlement Agreement into which the parties freely and knowingly entered, the Court must hold a plenary hearing. A recent decision in the Essex County Superior Court, Family Part made a change in custody based solely on the recommendations of a court-appointed mediator. Originally, when plaintiff sought a change in custody, the parties agreed to retain a joint evaluator and enter into a consent order if they both agreed with the evaluator's recommendation. However, the parties and the court, further agreed that, if the decision of the evaluator was unacceptable to either party, that party could move for a hearing before the Court to determine whether the evaluator's recommendation should be implemented. The New Jersey Appellate Court reversed the superior Court ruling and reaffirmed a prior ruling in the case of G.C. v. M.Y. (287 N.J. super. 363, 368 (App.Div. 1995)) by stating that "unless there are exigent circumstances, changes in custody are not to be ordered without a plenary hearing." The exigent circumstances set forth were "evidence of imminent harm or threatened harm to the well-being of the child, there is no justification…[to make] a custody decision on an emergent basis, without a plenary hearing." This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter. If you or your children's other parent are seeking a modification of custody, you should consult an experienced family law attorney immediately in order to protect your rights. For more information on custody, divorce, dissolution of civil union or domestic partnership, alimony, child support or other family law matters in New Jersey visit HeatherDarlingLawyer.com.

Should a Confession Given While Under the Influence Be Suppressed in NJ?

A defendant convicted of second-degree illegal possession of a weapon won a motion to suppress the confession and had the guilty verdict overturned based on his being under the influence at the time he confessed. The motion was granted on the basis of defendant's preconfession statements to police that he was not mentally fit at the moment due to drugs coupled with inquiries he made regarding waiver of his right to counsel which indicated lack of adequate understanding thereof. Prior to obtaining a confession, the police are required to unscrupulously honor your request your rights to remain silent and to have an attorney present. If police fail to appropriately determine whether you are able to understand your rights while under the influence of drugs, you may be entitled to a suppression of evidence. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter. If you are facing criminal charges as a result of a confession and believe you may be entitled to suppression of the confession, you should consult an experienced traffic law attorney immediately in order to protect your rights. For more information on suppression, confessions, weapons charges, drug charges or other criminal law or municipal court matters in New Jersey visit HeatherDarlingLawyer.com.

Legal Representation for Children When Parental Rights Are Terminated

Bill A-700 that is pending in New Jersey, would require the State to provide legal representation for a child in proceedings after parental rights have been terminated. This Bill extends the authorization of the Law Guardian Program of the Office of the Public Defender to provide legal representation until permanent placement has been finalized by the court. Extending the legal representation ensures the child(ren)'s wishes to are known and their interests protected. In addition to the Office of the Public Defender assigning counsel based on all characteristics of the case, the willingness of an attorney to represent any party must be taken into account. This Bill also makes mandatory the requirement that attorneys who represent a party in any post-termination review hearing receive adequate training to provide proper representation to the clients. While these services are typically already offered by the Officer of the Public Defender, the ratification of this bill will be an important milestone in guaranteeing the proper representation of New Jersey's youth. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter. If you are facing or seeking termination of parental rights, you should consult an experienced family law attorney immediately in order to protect your rights. For more information on parental rights,adoption, child support, custody, alimony, divorce, dissolution of a civil union or domestic partnership or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This post was contributed by Doreen L. Neggia, Esq.

Jurisdiction of Prosecutors in NJ Sex Crimes Extends to Acts As Far As Germany

During a Paramus Catholic High School trip to Germany, two chaperones, Michael Sumulikoski, and assistant coach and substitute teacher, and Artur Sopel, vice president of operations, were alleged to have had sex with minors entrusted to their care. Bergen County Superior Court Judge James Guida heard the case of State v. Sumulikoski. The Judge ruled that, although the conduct was alleged to have occurred in Germany, the defendant’s role as supervisors began in New Jersey. Each defendant was charged with multiple counts of sexual assault and endangering the welfare of a minor. Sopel was also charged with witness tampering. The Judge held that the question turned on whether a material element of the sexual assault statute, the relationship of the accused to the victim, could be considered conduct. His conclusion was that the defendants’ role as chaperones was the specific conduct the Legislature intended to prevent. The act of conduct, undertaking the role of chaperone, in New Jersey was the key to permitting prosecution in New Jersey. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter. If you are accused of a sex crime, you should consult an experienced criminal law attorney immediately in order to protect your rights. For more information on sex offenses or other criminal law matters in New Jersey visit HeatherDarlingLawyer.com.

College is a Reason For Child Support Modification in NJ

In Jacoby v. Jacoby, a case recently decided by the New Jersey Appellate Division, the Court held that “a child’s attendance at college is a change in circumstances. This deviation from the child support guidelines returns discretion to family part judges, to the point of being almost contrary to the imposition of Child Support Guidelines. Judges will now be required to take into account tuition, including housing, board, books and other fees. This may lead to an increase in support due to the child’s increased expenses. The court will also need to factor in the child’s ability to work, obtain scholarships or receive financial aid to offset the cost to parents. Many Property Settlement Agreements contemplate a continuation of child support throughout college, until the child is emancipated, and also include the manner in which the parents shall share in the children’s college tuition payments. Now, seeking a modification of child support can result in a deviation from the standards of the guidelines to combine these previously separated decided matters. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter. If you are seeking or attempting to avoid a modification of your child support payments, you should consult an experienced family law attorney immediately in order to protect your rights. For more information on child support, custody, alimony, divorce, dissolution of a civil union or domestic partnership or other family law matters in New Jersey visit HeatherDarlingLawyer.com.

Possible Elimination of Time Limits on Sexual Abuse Suits in NJ

A bill pending in NJ, A-2405, would eliminate the statute of limitations on sexual-abuse lawsuits. The current statutes call for the filing of a lawsuit within 2 years of the abuse or, if the victim is a minor, 2 years after the victim reaches the age of majority. If passed, this bill would open the possibility of bringing their abusers to justice for many for whom this possibility has long ago ended. This expansion of opportunity could serve as an additional deterrent to those who would choose to commit such crimes believing they would escape prosecution under the current statute. For those who have committed such offenses over 2 years ago and believed they had escaped prosecution, this may re-open the possibility of prosecution. Although the bill has not yet passed, it is likely this will cover past crimes as well as crimes not yet committed. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter. If you are charged with a crime, you should consult an experienced criminal law attorney immediately in order to protect your rights. For more information on Megan's law, sex-crimes, endangering the welfare of a minor or other criminal law matters in New Jersey visit HeatherDarlingLawyer.com.

False Incrimination Penalties May Increase in NJ

The current penalty for falsely incriminating another in NJ is 18 months in prison in a $10,000 fine for what is presently a 4th degree crime. Pending in the NJ Assembly is A-436 which would increase the degree of the charge to 3rd degree if the allegation is the victim committed a 3rd degree crime. A 3rd degree crime carries penalty of 3-5 years in prison and a $15,000 fine. In the event the person accused is accused of committing a 2nd degree crime, the false accuser will be guilty of a 2nd degree crime. The penalty for a 2nd degree crime is 5-10 years in prison and a $150,000 fine. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter. If you are charged with a crime, you should consult an experienced criminal law attorney immediately in order to protect your rights. For more information on criminal law matters in New Jersey visit HeatherDarlingLawyer.com.

Hearing Requirements for Transfer of Juvenile to Adult Corrections Facility in NJ

The Appellate Division ordered the Juvenile Justice Commission to rewrite its regulations to afford juveniles prior written notice, a hearing before an impartial trier of fact, written findings of fact and some form of representation prior to their transfer to an adult facility. The transfer of a juvenile 16 years or older from the Juvenile Justice Commission to the Department of Corrections is acceptable when the juvenile's presence in the juvenile facility threatens the safety of other juveniles in the facility, operations of the facility of the public safety. Previously, the regulations did not include any notice, opportunity to be heard or any form of representation. The new ruling provides juveniles with these due process rights previously denied them. The Court specifically held that there is great importance for juveniles to have access to attorneys once they are involved with the criminal justice system. In its decision, the Court did not go so far as to require the appointment of counsel to those who could not afford representation. Additionally, there is no need for the Family Part Judge who rendered the decision to incarcerate the juvenile to become involved in adjudication of any transfer decision. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter. The consequences of being accused of a crime can affect juveniles for the rest of their lives, even if they reach a plea agreement that may seem favorable at first glance. Any juveniles charged with a crime should consult an experienced criminal defense attorney immediately in order to protect your rights. For more information on juvenile matters and other criminal law matters, including municipal court matters, in New Jersey visit HeatherDarlingLawyer.com.

A Glimpse Into Megan's Law Registrant Risk Assessment Scale in NJ

Megan's Law requires registration of sex offenders and bears certain notification criteria. In the Matter of Registrant P.B. was appealed following a decision by the Superior Court, Law Division in Bergen County. Every sex offender is subject to a risk assessment to determine their potential to reoffend. The Law Division Judge's ruling that his score be set at 54, in the mid-range of "risk to reoffend," and requiring notification to all local law enforcement, educational institutions and community organizations within a mile of his home. Additionally, his name was to appear on the sex offender registry. The score of 54 was based on the Judge's finding that P.B.'s possession of photographs of adults in acts of penetrating children amounted to penetration by P.B. Further, the judge held that possession of photographs satisfied the duration element of the assessment. On appeal, the Court held that the penetration element of the risk assessment is not satisfied by simply possessing photos of adults in penetrative activity with children. Further, the court held that, without evidence of time of possession, the duration of offensive behavior element could not be met and no points could be assessed. Without the 15 points assessed for penetration and the 3 points assessed for duration, P.B.'s score of 54 was reduced to 36 points, which placed him in the low range of scoring as it pertains to risk of reoffense. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter. Sex offenses bear penalties which will affect you for the rest of your life, even if you reach a plea agreement that may seem favorable at first glance. If you have been charged with a sex crime you should consult an experienced criminal defense attorney immediately in order to protect your rights. For more information on sex crimes or other criminal law matters, including municipal court matters, in New Jersey visit HeatherDarlingLawyer.com.

Lack of Consent to Search Permits Withdrawal of Guilty Plea in NJ

Police received a tip from an informant about two black males selling drugs out of a car belonging to defendant. When police located the vehicle at the location provided, they notified defendant of their belief there were drugs in the trunk and requested permission to search. Upon denial of consent to search, officers proceeded to open the trunk and located the drugs the informant stated they would find. After entering a plea of guilty to two counts of third-degree possession of a controlled dangerous substance (CDS) with intent to distribute, the defendant moved to withdraw his guilty plea. In spite of the fact defendant may have been notified of his right to file a suppression motion, and that his right would be waived by entering a plea of guilty, defendant chose to plead guilty. Defendant later filed a motion to withdraw his guilty plea. After the Court below denied the defendant the relief sought, the New Jersey Appellate Court found that the Motion to withdraw the plea should have been granted. Defendant's appeal was granted on his contention that he did not consent to the search of the trunk of his car. Defendant claimed that he expressly denied consent to open the trunk of the car but the police did not honor his rights. Because the search may have violated defendant's rights, granting defendant's motion to withdraw the guilty plea was appropriate. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter. If you face criminal charges as a result of an illegal search, you should consult an experienced criminal defense attorney immediately in order to protect your rights. For more information regarding illegal search and seizure, 4th Amendment rights, drug charges or other criminal law matters, including municipal court matters, in New Jersey visit HeatherDarlingLawyer.com.

Incarceration For Willful Non-Payment of Child Support in NJ Requires Specific Findings of Fact

At times, failure to pay child support is intentional and other times it is unintentional. Judges may not make arbitrary decisions based upon their personal judgments as to the character of the non-paying individual. In the case in which such findings may lead to incarceration or invasion of the individual's rights from an order to wean and ankle bracelet for monitoring, this is even more so. When a court is making a finding regarding the ability of a child support obligor to pay, the judge is required to permit the obligor to testify on his or her own behalf and to present evidence in support of their inabilty to pay. Due to changed circumstances such as job loss, other court ordered obligations, failure of a business, disability, lack of work or other reasons for reduced income an obligor may be entitled to a reduction in child support and some flexibility regarding payment of arrears. A judge must set forth on the record specific finding of facts as to how they reached their decision in a matter. When an obligor's freedom and rights are at stake, the requirement of clear reasons from an unbiased point of view is even more necessary. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter. If you are seeking, or subject to, enforcement or modification of child support in Family Court, you should consult an experienced family law attorney immediately in order to protect your rights. For more information on child support, enforcement, modification, alimony, divorce, dissolution of civil union or domestic partnership, custody or other family law matters in New Jersey visit HeatherDarlingLawyer.com.

Motions for Reconsideration in NJ Family Court

Due to the highly sensitive nature of family court matters, one or both of the parties is often unhappy with the decision of the judge in their matter. A party unhappy with the judge's decision has the right to seek reconsideration of that decision by following the appropriate guidelines and procedures. Two critical issues in deciding whether to seek reconsideration are burden of proof required to justify reconsideration and the timeliness of the Motion for Reconsideration. The controlling New Jersey Court Rule 4:49-2 states that the Motion must be served within 20 days of the service of judgment on all parties and must state the specific basis on which the Motion is made, including a statement of the matters or controlling decision which the party making the Motion believes the court has overlooked or as to which it has made an error in judgment. Courts often see Motions for Reconsideration because a party is unhappy with the judge's decision but there are occasions upon which there are pertinent facts or decisions overlooked in the initial hearing or there may simply be an error the judge's decision. In light of the fact that the instances in which a Motion for reconsideration is granted are rare, such Motions must be carefully drafted. Such Motions should only be sought after serious consideration is given to the matter and the likelihood of success seems strong. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter. If you are seeking reconsideration of a Family Court decision, you should consult an experienced family law attorney immediately in order to determine the likelihood of meeting the criteria and in order to file timely. For more information on reconsideration, modification, alimony, divorce, dissolution of civil union or domestic partnership, custody, child support or other family law matters in New Jersey visit HeatherDarlingLawyer.com.

State Must Prove Operation of Vehicle to Win DUI Case in NJ

In NJ, courts have the discretion to broadly construe "operation" of a motor vehicle to include intent to drive while intoxicated. Intent to drive while under the influence has been proven by as little as sitting in a vehicle with the keys in your possession. There is not a true "motion" requirement for the vehicle and the arresting officer need not witness operation. However, no matter how amorphous the definition of "operation" may be, the fact remains that the prosecution bears the burden of proving the defendant was impaired, had the means to operate a vehicle in very close proximity and the intent to operate said vehicle while still under the influence of drugs or alcohol. A DWI in New Jersey carries serious consequences. If you are charged with driving under the influence of alcohol, illegal drugs such as heroin, cocaine, marijuana or ecstasy or prescription drugs such as oxycontin, percocet, roxycottin, valium or other drugs which may hinder your ability to drive, even if you have a prescription for them, you should consult an experienced DUI attorney immediately in order to ensure your rights are protected. Before conceding guilt, your matter should be fully reviewed by an experienced attorney to prevent you from being convicted when the state does not have adequate evidence to prove it's case. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter. If you are charged with a crime, you should consult an experienced DUI attorney immediately in order to protect your rights. For more information on driving while intoxicated, driving under the influence, controlled dangerous substances (CDS) in a motor vehicle or other criminal law matters in New Jersey visit HeatherDarlingLawyer.com.

Removal of a Child From Their Native Country Under the Laws of NJ

The Hague Convention is an international law into which countries may enter for the purposes of international cooperation. The Hague Convention has been signed by 89 countries. Haiti, Nepal and the Russian Federation have signed but not ratified. The Hague Convention has sections pertaining to international abduction of a child. One sections requires the return of a child wrongfully removed from their habitual residence as long as the action for return is filed within one year of the date the child is removed. Any application filed after one year requires the court to consider whether the child is well-settled in the new country of residence. Exceptions to the one year timeframe include a showing that the abducting parent has taken steps to conceal the child's whereabouts from the parent seeking return or there is grave risk of harm to the child by the receiving state or family members therein. There are defenses which may be asserted by the parent who removed the child from their native country. In the event the other parent consented to removal, the court will not force a return of the child to their habitual residence. If the child is old enough to make such a decision, the child may decide whether they wish to stay in the country to which they have been removed or return to their habitual residence. Finally, if there is grave risk of physical or psychological harm to the child in their new residence, the court will order the return of the child to their habitual residence. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter. If you are seeking to remove a child from or have a child returned to another state or territory, you should consult an experienced family law attorney immediately in order to protect your rights. For more information on relocating with children, child custody, child support, enforcement, modification, alimony, divorce, dissolution of civil union or domestic partnership, custody or other family law matters in New Jersey visit HeatherDarlingLawyer.com.

Presumed Innocent Until Proven Guilty in NJ

Often those facing criminal charges find themselves facing substantial prosecutorial prejudice, especially if they have faced prior charges. Even those who have been acquitted of prior charges or who have had prior charges dismissed by the prosecution face such prejudice. Prosecutors rely heavily on the representations of police officers and work under the assumption that the facts presented by those officers are truthful. Prosecutors are involved in long-term investigations and oversee task forces in which police officers operate in the field to obtain information for prosecutors to use to obtain convictions against criminal offenders. In such cases, the prosecutor is intimately involved in the development of the evidence he or she will later present to a judge in order to obtain a conviction. The prosecutor is not simply putting on the State's case but is, in essence, putting on his or her own personal case against the defendant. As a result of their personal involvement and reliance on officers, prosecutors are rather zealous at times, sometimes overly so. Prosecutors must act within the bounds of the law. One way prosecutors overstep the rules is to attempt to shift the burden of proof to the accused in the minds of the jury. They will try to infer to the jury that if the defendant chooses to exercise his right not to testify against himself or herself then the jury may infer guilt. In a recent case, State v. Urgent, the defendant was convicted of robbery and unlawful possession of a weapon (a knife). The prosecutor attempted to influence the jury to believe the defendant's failure to produce certain witnesses permitted the jury to infer the defendant's guilt. The New Jersey Appellate Court's holding in State v. Urgent reinforced the notion that a defendant is presumed innocent until proven guilty and that the burden of proof remains on the prosecutor by reversing the guilty finding and remanding the case to Superior Court for a new trial. This means the prosecutor must prove the accused is guilty and, although the accused should present any available evidence in his or her favor, the accused is never required to prove innocence. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter. If you are facing criminal charges, you should consult an experienced criminal law attorney immediately in order to protect your rights. For more information on criminal law matters in New Jersey visit HeatherDarlingLawyer.com.

NJ Rape Shield Law Protects Content of Messages To And From A Child In A Criminal Trial

A defendant accused of aggravated sexual assault, sexual assault and endangering the welfare of a child may introduce, at trial, evidence of the child's participation in communications constituting "sexual conduct." Lack of opportunity to introduce the fact that communications existed could deprive a defendant of their right to defend against the State's charges and evidence needed for a fair trial must be admitted as long as the value of the proofs are not outweighed by their prejudicial effect. The fact that a child previously participated in the exchange of text messages and internet communications with adult males while the child also pretended to be an adult may be introduced as evidence by the defendant. However, the specific content of the messages is protected under the New Jersey Rape Shield Law (N.J.S.A. 2C:14-7) based on the notion that any probative value of the content of the messages is substantially outweighed by the prejudice the messages would cause. The goal of the court in making this determination is to serve the interests of justice while protecting the privacy of the victim. The NJ Rape Shield Law is not limited to the protection of children but was amended in 1988 to include children under its protection. The law is intended to limit the introduction of the victim's prior sexual behavior to both protect the victim's privacy as well as prevent prejudice in the minds of the jury regarding the victim and any potential to have been a willing participant in the defendant's conduct. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter. If you are accused of a sex crime, you should consult an experienced criminal law attorney immediately in order to protect your rights. For more information on sex offenses or other criminal law matters in New Jersey visit HeatherDarlingLawyer.com.

Substantial Increase in Penalties for Harboring a Sex Offender in NJ?

Pending legislation in New Jersey would increase the penalty for harboring or concealing a sex offender. The current offense grades for violating N.J.S. 2C:29-3 are 3rd degree if the sex offender is guilty of a 2nd degree offense and 4th degree if the sex offender is guilty of a 3rd degree offense. Any lesser offense on the part of the sex offender would subject the individual harboring or concealing the offender to a disorderly persons offense. If passed Assembly bill A-2079 subject an actor harboring or concealing a person subject to registration as a sex offender while the person has knowledge the sex offender has not registered to a mandatory minimum term of imprisonment without eligibility for parole. In the event the offense is of the 3rd degree, the actor would be ineligible for parole for a minimum of 3 years. In the event the offense is of the 4th degree, the actor would be eligible for parole for a minimum of 1 year. This bill is sponsored by Assemblywomen Munoz, serving Morris, Somerset and Union, and Simon, serving Hunterdon, Mercer, Middlesex and Somerset, and Assemblyman Caputo, serving Essex County. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter. If you are accused of a sex offense or harboring a sex offender, you should consult an experienced criminal law attorney immediately in order to protect your rights. For more information on sex offenses or other criminal law matters in New Jersey visit HeatherDarlingLawyer.com.

Social Security Disabilty No Longer Offers Automatic Relief From Child Support in NJ

The New Jersey Family Court system does not accept social security's declaration that an individual is disabled as an indication that the person cannot work at all. In Gilligan v. Gilligan, the Court decided it is the burden of the obligor to either pay child support or prove why they are unable to do so. When making the ruling, the Court considered the maximum allowable earnings an obligor parent can make without jeopardizing their social security benefits and decided it could impute to the parent the ability to earn income up to that maximum amount. Currently, $1,010 per month is the maximum an individual may earn per month without jeopardizing their social security benefits. If they are blind, a person may earn $1,690 per month without jeopardizing social security benefits. Previously, in Golian v. Golian, decided in 2001, the Court held that a party receiving social security disability was presumed unable to work to pay child support. The burden of proof was on the parent seeking support to prove the disabled individual was capable of earning money to pay for child support. Putting the onus on the party without access to medical records placed them at a disadvantage in litigation. The Court, in Gilligan, did distinguish it from Golian by stating the difference between Golian's interest in alimony compared to Gilligan's interest in child support. The distinction between the two cases seem to be the strong public interest in parents supporting their children. This means a declaration of disability by social security remains a valid reason to avoid payment of alimony. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter. If you are seeking a modification of support or someone is seeking to modify a support order imposed on you, you should consult an experienced family law attorney immediately in order to protect your rights. For more information on alimony, divorce, dissolution of civil union or domestic partnership, custody, child support or other family law matters in New Jersey visit HeatherDarlingLawyer.com.

Traffic Law Violations Expanded To Criminal Liability in NJ

The NJ Appellate Court upheld the decision of Sussex County Superior Court Judge N. Peter Conforti in finding violating seatbelt laws can result in criminal liability . The application of a statute designed to protect the general public safety has been used only sparingly by prosecutors since it was enacted in 1997. In the matter involved, State v. Lenihan, an 18 year old driver was found to be operating a vehicle after "huffing"- inhaling propellant as from an aerosol can with the purpose of becoming intoxicated. The driver lost control if the vehicle and the 16 year old passenger was killed in the ensuing crash. the resultant police investigation revealed the passenger was not wearing a seatbelt. When an individual acts recklessly and injures another while violating a law intended to protect the public safety they are guilty of a crime. The act of driving under the influence likely caused the accident and the failure to wear a seatbelt was a compounding factor in the death of the passenger. Under circumstances such as these, public policy favors a broad reading of legislative intent to mete out punishment and deter others from committing similar acts. Although normally viewed as a simple traffic offense, failure to wear a seatbelt was read by the Court to permit additional charges to be levied against the defendant. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter. If you are accused of criminal offense, you should consult an experienced criminal law attorney immediately in order to protect your rights. For more information on traffic offenses, municipal court matters or criminal law matters in New Jersey visit HeatherDarlingLawyer.com.

Increased Penalties For Burglary Are Pending in NJ

Pending legislation upgrades second degree burglary of a residence to first degree if the actor is armed. Due to the danger to human life which is always present during a home invasion, the NJ Assembly passed A-1035 on March 15, 2012. This bill is now on the desk of Governor Christie. The bill is sponsored by Assemblymen Anthony Bucco of Morris and Somerset, Ralph Caputo of Essex, Michael Patrick Carroll of Morris and Somerset and Jon Bramnick of Morris, Somerset and Union. Burglary is defined in the bill as entering or surreptitiously remaining in a dwelling or structure adapted for overnight accommodation of persons. The text of the bill includes that no one need be present when the burglary occurs. To be considered armed under the bill, the actor may display "what appears to be" explosives or a "deadly weapon." In the situation of a burglary, the actor and the victims are often surprised to encounter each other within the residence. The results are frequently deadly and the actions the parties may be confusing to each other. An actor encountered by a homeowner may be perceived as armed by virtue of an object the actor is holding with no intent to use the object as a weapon. The terms of this statute will greatly increase the penalties for such an actor to up to 10-20 years in prison and $200,000 in fines. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter. If you are a defendant in a burglary matter, you should consult an experienced criminal law attorney immediately in order to protect your rights. For more information on burglary, robbery, theft, shoplifting or other criminal law matters in New Jersey visit HeatherDarlingLawyer.com.

Modification of Alimony- What is Required in NJ?

A change in employment or earnings of a spouse, either the payor or the payee, is not necessarily enough for a modification of spousal support. The court requires a "prima facie showing of changed circumstances" to consider modification of support. Prima facie is latin for "at first sight" or "on its face." What this means if that the change must appear, to the court, to be significant and in need of further consideration at a hearing. The change in circumstances required for a modification of support is one that substantially impairs the ability of a spouse to support himself or herself. This means a long-term change, not simply a reduction in income during a slow period in a spouse's business cycle. The court also considers the earning capacity or potential earning power of the spouse, not simply whether they are using the ability or the power. This means if the court finds the spouse can earn more, the court will impute to the spouse the income the court believes they can make. A long-term change in the economy, a certain industry leaving the area or a long-term disability are examples of reasons the court will consider modification of alimony. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter. If you are seeking a modification of support or someone is seeking to modify a support order imposed on you, you should consult an experienced family law attorney immediately in order to protect your rights. For more information on alimony, divorce, dissolution of civil union or domestic partnership, custody, child support or other family law matters in New Jersey visit HeatherDarlingLawyer.com.

Possible Expansion of DNA Collection in NJ

If pending bill, S-436, becomes law, DNA collection will be expanded from those convicted of, or pleading guilty to indictable offenses. The new law would permit the collection of DNA to those convicted of disorderly persons offenses or found not guilty by reason of insanity. This means that those convicted, or entering guilty pleas, in Municipal Court would be required to provide a DNA sample. The law would also apply to juvenile offenders. This will greatly expand the DNA database and could have serious implications on members of society who have been labeled, by virtue of having a record from a low level municipal offense, as offenders of our laws. Minor offenders may be incriminated for future crimes by virtue of their DNA being found in an area they frequent for lawful purposes. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter. If you are charged with a crime, even if you believe it to be a minor municipal offense, you should consult an experienced criminal law attorney immediately in order to protect your rights. For more information on criminal law or municipal court matters in New Jersey visit HeatherDarlingLawyer.com.

When Does a Child's Disability Extend or Bar Emancipation in NJ

In the event a child becomes disabled before emancipation, the extent of the disability will also be a factor in when emancipation of the disabled child occurs, if at all. If a disabled child is determined unable to support themselves by a court of law, child support will continue until such time as there is a change in the child's condition. At any time, if the spouse paying child support has legitimate cause to believe there is a change in the child's condition enabling the child to support themselves, the party is entitled to a hearing and discovery regarding the child's medical condition. Although a child may not be fully able to support themselves due to a disability, in the event they are able to partially support themselves, the payor spouse may still be entitled to a reduction in their child support obligation. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter. If you are seeking an increase or decrease in child support, you should consult an experienced criminal law attorney immediately in order to protect your rights. For more information on child support modification, custody, divorce, civil union dissolution or other family law matters in New Jersey visit HeatherDarlingLawyer.com.

Eyewitness Identification Rules Change in NJ Criminal Cases

Deciding the human memory is not foolproof like a video that can be re-played and show the same picture every time, the New Jersey Supreme Court has placed tighter regulations on eyewitness identifications in criminal cases. New Jury instructions will require jurors to consider procedures used by law enforcement during eyewitness identification including suggestiveness in the composition or nature of a lineup or photo array, verbal cues or suggestions by the officers during identification, nonverbal cues or gestures by the officers during identification as well as any other factors which may have suggested to the eyewitness that the defendant in question was the one they saw. The human mind is subject to suggestion and observations are filtered through the past experiences and memories of the viewer. There are factors the Court listed as readily affecting eyewitness' perception are duration of the event, distance between the eyewitness and situation, focus on a weapon rather than entire scene, the stress the eyewitness felt as a result of the situation, cross-racial identification and lighting conditions. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter. In the event an eyewitness identification is what the State uses to build a case against you, there may be a very good defense available. If you are a defendant in a criminal matter, you should consult an experienced criminal law attorney immediately in order to protect your rights. For more information on eyewitness identification or criminal law matters in New Jersey visit HeatherDarlingLawyer.com.

Parenting Rights for Fathers Improving in NJ?

Often the Parent of Primary Residence (PPR), traditionally the mother, will make it difficult for the other parent, Parent of Alternate Residence (PAR), to see the children. Fathers who worked to support a family only to face divorce often find themselves unable to see their children as a result of courts forcing them to continue to support the now dissolved family, including a former spouse, for no other reason than they did so during the marriage. As a result of being forced by courts to work long hours, sometimes even second or third jobs, to pay the bills of the former spouse, fathers are further denied the opportunity to raise the children and find themselves relegated to the position of PAR. It is often only a matter of time before fathers find the other party withholding or denying parenting time. A recent NJ case offers hope to the PAR. In Ewing v. Hart, the NJ Appellate Court held that (1) a mother who moved to Florida with the children and denied summer and holiday visitation time to the father was in contempt of court; (2) charged the mother with custodial interference and signaled she may be required to return the children to NJ if the mother did not cease her interference with the father's parenting time; and (3) permitted the father to file a motion for a change in custody in the event the mother continued to deny the father parenting time as ordered. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter. If you are involved in a dispute regarding child custody or parenting time, you should consult an experienced family law attorney immediately in order to protect your rights. For more information on dissolution of a marriage, civil union or domestic partnership, child custody or other family law matters in New Jersey visit HeatherDarlingLawyer.com.

Conditional Dismissal May Be Expanding in a NJ Municipal Court By You

Conditional Discharge and Pre-Trial Intervention (PTI) permit first time offenders, in Municipal and Superior Court respectively, to undergo a period of probation rather than face the typical penalties for the crime committed. In the event they successfully complete the probationary period, the crime will not appear as part of their record. If they fail to complete probation successfully the underlying charges are simply reinstated and they will be sentenced to the appropriate penalties. Municipal Courts allow Conditional Discharge for certain first event drug related offenses and Superior Courts allow Pre-Trial Intervention for a variety of offenses for first time offenders. The unfair result for certain offenders in municipal court is they are subject to harsher penalties than those committing more serious offenses. The Conditional Dismissal program under consideration would permit defendants charged with disorderly or petty disorderly persons offenses the opportunity to avoid a criminal record. Conditional Discharge and Pre-Trial Intervention are good choices for some offenders but not for all. Your best choice is always to seek experienced legal counsel if facing criminal charges in Superior or Municipal Court. For more information on criminal law in New Jersey visit HeatherDarlingLawyer.com

Mandatory Jail time for Driving While Suspended in NJ

Driving while suspended in NJ carries substantial penalties. First and second time offenders face fines and further suspension of driving privileges. Those convicted of third or subsequent offenses face fines, further suspension and mandatory imprisonment in the county jail for 10 days. In the past, municipal court judges could take all factors into account at sentencing, including your personal circumstances such as job or family responsibilities, illness and other significant factors and permit alternatives to jail. Formerly the Sheriff's Labor Assistance Program (S.L.A.P.) was used by some municipal court judges as a means to permit certain individuals to avoid jail based on their specific circumstances. A New Jersey municipal court judge decided, in State v. Ayton, on September 13, 2011, that S.L.A.P. is not available to third or subsequent offenders. Although this is not binding on other Courts in New Jersey, it represents a tightening of traffic laws in NJ. The result of a Driving While Suspended charge can be severe. It becomes even more significant if you cannot afford to miss work, have family members who rely on you to meet their daily needs or other issues which make serving a jail sentence seem impossible. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter. If you are facing a Driving While Suspended charge, you should consult an experienced municipal court attorney immediately in order to protect your rights. For more information on driving while suspended, traffic violations, other municipal court or criminal law matters in New Jersey visit HeatherDarlingLawyer.com.

No Expectation of Privacy In A Cell Phone Number in NJ

A former Morris County teacher, Patrick DeFranco, was indicted on charges of first-degree aggravated sexual assault, second-degree sexual assault and third-degree endangering the welfare of a child after a wiretap provided evidence of a past sexual relationship between the teacher and a former student. The abuse had gone unreported for 7 years and the student no longer had evidence of the relationship. In order to obtain evidence, the victim agreed to call the Defendant while the police listened on a recorded line. The cell phone number the victim had for DeFranco was no longer valid so the Morris County Prosecutor's Office, with the help of Denville police, obtained DeFranco's current cell phone number from Valleyview school. A call took place in which DeFranco chose to discuss past sexual contacts with the victim. At trial, DeFranco moved to suppress the wiretap based on the fact that, although he had given his prior cell phone number to the victim, he had not given the number used for the wiretap to the victim. He further argued that he had a reasonable expectation of privacy in his cell phone number and the police should not have obtained same without a warrant, for which they may not have met the probable cause requirements. Morris County Superior Court Judge Dangler refused to suppress the evidence obtained from the phone call. The NJ Appellate Court upheld Dangler's decision, finding there was no reasonable expectation of privacy in a cell phone number and, even if there was, DeFranco waived it by giving the victim his number in the past. The Appellate Court also noted DeFranco's choice to recall intimate details of his past during a voluntary conversation with a victim he had sexually abused in the past. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter. If you are charged with a crime, you should consult an experienced criminal law attorney immediately in order to protect your rights. For more information on megan's law, sex-crimes, endangering the welfare of a minor or other criminal law matters in New Jersey visit HeatherDarlingLawyer.com.

NJ Assembly Looks to Criminalize DUI With Young Passengers

Currently pending in the New Jersey Assembly is a which would result in criminal penalties for driving under the influence with a person under 17 in the vehicle. Driving under the influence includes liquor, heroin, cocaine, marijuana, oxycodone (oxycottin), percoset, Escasty, methamphetamines, morphiene, xanax, vicodin, percodon, fentanyl, adderall, nembutal, ritalin, dexedrine, valium, suboxone, diazepam, roxycontin, or any narcotic, hallucinogenic or other controlled dangerous substance. This means if you are taking your own prescription and a police officer finds your driving abilities to be hindered beyond an acceptable level by your prescription, you may be not only charged with a DUI but also face criminal penalties. If this legislation is passed, the DUI statute N.J.S.A. 39:4-50 would be modified to include a person guilty of DWI with a passenger 17 years of age or younger in the car is also guilty of a crime of the fourth degree if the violation does not result in bodily injury to the minor. If the minor suffers bodily injury as a result of the driving while under the influence offense, the driver will be guilty of a crime of the third degree. In addition to the above charges the driver will be required to attend an additional Intoxicated Driver Resource Center program concerning responsible operation of a motor vehicle while transporting a minor. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter. If you are facing DUI charges, you should consult an experienced DUI attorney immediately in order to protect your rights. For more information on DUI, drug charges, other criminal law matters or traffic violations in New Jersey visit HeatherDarlingLawyer.com.

Rights of Unmarried and Same-Sex Parents in NJ

Applicable to both heterosexual and same-sex partners, a recent NJ court decision offers hope to the Parent of Alternate Residence (PAR) when it comes to parenting time. Often the Parent of Primary Residence (PPR) will make it difficult for the other parent to see the children. In the case of unmarried heterosexual couples parenting time issues are frequently more difficult for fathers than for fathers in relationships where the child was born during wedlock. For same-sex couples in which the child is born prior to a civil union, or there simply is no civil union, and the non-biological parent does not have opportunity to adopt prior to the dissolution of the relationship, parenting time issues can become even more difficult. In both cases, there is hardship due to certain long-time presumptions by the courts about children being born to a married mother who stayed at home and raised those children and father who worked to support the wife and children which have not yet changed to meet the diverse relationships that now exist. Even in the case of dissolution of marriage, the father who worked to support the family and finds himself divorced often finds the other party withholding or denying parenting time. In the case of Ewing v. Hart, the NJ Appellate Court held that (1) a mother who moved to Florida with the children and denied summer and holiday visitation time to the father was in contempt of court; (2) charged the mother with custodial interference and signaled she may be required to return the children to NJ if the mother did not cease her interference with the father's parenting time; and (3) permitted the father to file a motion for a change in custody in the event the mother continued to deny the father parenting time as ordered. Although the mother and father were never married, the court refused to take a prejudicial position against the father. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter. If you are involved in a dispute regarding child custody or parenting time, you should consult an experienced family law attorney immediately in order to protect your rights. For more information on dissolution of a marriage, civil union or domestic partnership, child custody or other family law matters in New Jersey visit HeatherDarlingLawyer.com.

Undoing an Emancipation in NJ

In New Jersey, an emancipation may be reversed on certain grounds. One is a previously emancipated child becoming seriously disabled prior to attaining the age of majority. Another, discussed here, is a child returning to college on a full-time basis. In Azimi v. McVeigh-Azimi, a child was fully emancipated by the Order of Passaic County Judge Ronny Jo Siegal. In October 2010 the child was declared emancipated without objection from the mother. On January 21, 2011, Judge Siegal declared the child unemancipated citing evidence presented by the mother the child was then attending college full time. The mother was seeking reinstatement of child support with an increase, health and life insurance and college tuition. On appeal, the Court held a hearing should be conducted considering certain factors including the reasonableness of the child's expectation for higher education paid for by the parents, the parent's ability to pay; the financial resources of the child; commitment by the child to the education sought and the child's relationship to the paying parent. In the event the weight of this evidence supports the Court's findings, a previously emancipated child may be unemancipated. For more information on emancipation or other family law issues visit HeatherDarlingLawyer.com.

Consent to Search Must be Knowing and Voluntary

In New Jersey, consent to search is a long-established exception to the requirement that police obtain a search warrant prior to entering a residence with the purpose of searching for contraband or evidence of a crime. A critical component of consent is knowledge of the right to refuse consent. Three other critical component required to render a consent search valid are 1) defendant's right to be present during the search; 2) notification to defendant by police of defendant's right to limit the scope of the search and; 3) defendant's notification by police of his right to withdraw consent at any time during the search. If you volunteer information about contraband or evidence of a crime without them asking you waive your rights to the constitutional protections afforded to you and eliminate the requirement that police obtain a warrant. If police suggest to you that they will be seeking a search warrant, they are essentially seeking your consent to search without advising your of your rights to refuse, be present or stop the search at any time. Additionally, if they ask how to enter into a structure or object they are seeking consent to enter place or look inside the item without advising you of your rights. Finally, if you are secured in an area where you may not see the search in order to insure it is limited to the areas you consented to, or you are not in proximity to advise them to stop the search, your rights are being violated. Any search which violates your rights is illegal under the constitution and evidence obtained from such a search is subject to suppression. In the event you are charged with a crime in which you believe an illegal search occurred you should seek an experienced criminal law attorney immediately to insure your rights are protected. For more information on search and seizure or other criminal law matters in NJ visit HeatherDarlingLawyer.com.