Sex Crime Sentencing Must Be According to Statute in NJ

Defendant was charged with second degree sexual assault and, at trial, was convicted of third degree endangering the welfare of a minor resulting in parole supervision for life. Defendant appealed the sentence as it called for parole supervision for life. The New Jersey Appellate Court held that, although the conviction occurred after the law went into effect, the crime occurred prior to the enactment of parole supervision for life for endangering the welfare of a minor and remanded for re-sentencing. 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 about sex crimes, Megan's Law 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.

Domestic Violence Charges Not A Right To Counsel in NJ

The NJ Appellate Division recently held, in D.N. v. K.M./K.M. v. D.N, that neither plaintiffs nor defendants in a domestic violence matter who cannot afford counsel are entitled to the representation of counsel at the expense of the state. The Appellate Division rendered this ruling even though one significant consequence of domestic violence is the immediate loss of weapons with the potential of permanent loss of weapons and the inability to purchase, possess or carry weapons in the future in the event of a guilty finding. In spite of legislation and a lean toward the removal of guns from the hands of the people, the right to keep and bear arms remains a constitutional right at this time. The Appellate Division offered the reasoning that, unlike other criminal actions, domestic violence is a matter of the victim against the defendant rather than the full force of the state of New Jersey against the defendant. The court further reasoned that domestic violence laws are curative in nature and designed to stop further acts of domestic violence. However, before the court can make a finding of domestic violence, it must find that an offense such as harassment, stalking or assault occurred. If you are facing domestic violence charges, you should consult an experienced criminal law attorney immediately in order to protect your rights. For more information on assault, harassment, stalking, terroristic threats, child custody, domestic violence, parenting time/visitation, dissolution of a civil union, marriage or domestic partnership, alimony, palimony or other family and 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.

Court Invalidates Part of Bias Intimidation Law in NJ

The NJ Appellate Division held that the defendant must have the intent to (1) commit a predicate offense, (2) intimidate the victim and (3) cause the victim to perceive bias as defendant's motive. The decision renders N.J.S.A. 2C:16-1(a)(3) , which allows for conviction is the underlying offense caused the victim to be intimidated or "reasonably believe" the defendant's purpose was to intimidate. In the case at hand, State v. Pomianek, a black man went into a storage closet at work with 2 white men who then walked out and closed the door, leaving the black man inside. Testimony indicated the defendants, Pomianek and Dorazo were considered "pranksters" at their workplace and this type of conduct was typical of them. The appeals court considered all circumstances and upheld the decision below finding defendant guilty of harassment but not bias intimidation. In making its decision, the court looked to Apprendi v. New Jersey, 530 U.S. 466 (2000), in which intent was found to be a critical element to a guilty finding in bias crimes. If you are facing criminal charges for unintentional bias intimidation, you should consult an experienced criminal defense attorney immediately in order to protect your rights. For more information on bias intimidation, juvenile crimes and 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.

Post-Judgment Relocation Requirements Reviewed

Pursuant to Baures v. Lewis, the parent seeking to relocate to another state with the child has the burden of proof to show that there is a good faith reason for the proposed move and the proposed move will not be inimical to the child’s interests. In making a determination as to the removal, the Court must address the following factors: (i) reasons given for the move; (ii) reasons given for the opposition; (iii) past history of dealings between the parents; (iv) whether the child will receive educational, health and leisure opportunities at least equal to what is available here; (v) any special needs or talents of the child; (vi) whether a parenting time and communication schedule can be developed that will allow the non-custodial parent to maintain a full and continuous relationship with the child; (vii) the likelihood the custodial parent will continue to foster the child’s relationship with the non-custodial parent; (viii) the effect the move on extended family relationships here and in the new location; (ix) if the child is of age, their preference; (x) whether the child is entering their senior year in high school; (xi) whether the non-custodial parent has the ability to relocate; and (xii) any other factor bearing on the child’s interest. Based on a recent review of the Baures factors, the Court in Benjamin v. Benjamin held that it is not mandatory that a custodial parent have a specific job or promise of guaranteed employment in another state to relocate. It was noted that to require the custodial parent to show proof of a specific job or promise of guaranteed employment is often impractical as they do not even know when or if the Court will grant them the ability to relocate. Instead, the Court found that the practical and relevant question should focus on the custodial parent’s plan to provide a financially stabile household once in the new state. For that reason, the custodial parent’s relocation plan must include a look at their employment and work history. This would also include consideration of the long-term financial stability of the decision to relocate despite employment status. The Court further recognized that the financial reasonableness of quitting current employment and future economic stability, which can inimically affect the child’s security and emotional health, as the child’s interest must be at the forefront of the decision. In Benjamin, the court viewed the custodial parent’s longtime history of steady, stable employment, their having sought and found potential employers, their employment skills, their ability to present as articulate and intelligence and their history of responsibly caring for the child, both financially and otherwise, as evidence that the relocation request was reasonable and in no way irresponsible, impulsive or financially inimical to the child’s interests. If you are considering a post judgment relocation motion you will be addressing critical issues and should consult an experienced family law attorney immediately in order to protect your rights. For more information on alimony, equitable distribution, child support, child custody, parenting time/visitation, adoption, dissolution of a civil union, marriage or domestic partnership, modifications or other family law matters in New Jersey visit HeatherDarlingLawyer.com This blog is for informational purposes only and is in no way intended to replace the advice of an attorney regarding your specific matter.

Sexual Assault Case Was in The Details in NJ

In State v. Nash, a former librarian at the Morton Street Elementary School was found guilty of sexual assault charges and spent 10 years in prison before he was granted a retrial based on newly discovered evidence. The NJ Supreme Court ruled that if would be a fundamental injustice not to review the case in light of newly discovered evidence tending to exonerate Nash. Nash contested the charges of sexual assault as impossible based on the fact that the accusing student, J.B., a 12 year old special needs student, had a personal aide with him at all times. However, school principal Carl Gregory, now deceased, testified that J.B. did not have a personal aide. Gregory failed to testify to the fact that Chrystal St. Louis was J.B.'s student aide and with J.B. at all times. Gregory claimed not to have made that disclosure due to the fact that he was not questioned about it while providing testimony to the court. N.J. Court Rule 3:22-4(a) typically bars appellate courts from considering matters not raised at trial however, testimony regarding the presence of a student aide with J.B. at all times during the day is compelling and likely to change the outcome of a trial. N.J. Supreme Court Justice Barry Albin reasoned that strict adherence to N.J.C.R. 3:22-4(a) would amount to a "miscarriage of justice." Seemingly minor details can have substantial consequences in the outcome of a criminal 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 sex crimes 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.

Non-Custodial Parent's Obligation for College Costs in NJ

In a recent Appellate case, Caruso v. Whitlock, in which the parties were the parents of a child to which the father had no relationship with and had no input into the college selection, the court again upheld the prior decision of Newburgh v. Arrigo. The Appellate Court found that the Court must consider “all relevant factors” including, but not limited to: (i) whether the parent, if still living with the child, would have contributed towards the costs of the requested higher education; (ii) the effect of the background, values and goals of the parents on the reasonableness of the expectation of the child for higher education; (iii) the amount of the contribution sought by the child for the cost of high education; (iv) the ability of the parent to pay that cost; (v) the relationship of the requested contribution to the kind of school or course of study sought by the child; (vi) the financial resources of both parties; (vii) the commitment to and aptitude of the child for the requested education; (viii) the financial resources of the child, including assets owned individually or held in custodianship or trust; (ix) the ability of the child to earn income during the school year or on vacation; (x) the availability of financial aid in the form of college grants and loans; (xi) the child’s relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; and (xii) the relationship of the education requested to any prior training and to the overall long-range goals of the child. Although the Court in Caruso, did not specifically cite Newburgh, the Court did discuss with the parties during the hearing most of the Newburgh factors. Nonetheless, the Appellate Court felt that all the factors were not considered. This decision reminds the Court that the parent’s ability to pay, the parent/child relationship and the child’s ability to contribute with their own assets and obtaining a job must be included in the decision as to whether there should be a college contribution by the non-custodial parent and if so, the amount. If you are considering post judgment college contribution issues, you should consult an experienced family law attorney immediately in order to protect your rights. For more information on child support, parenting time/visitation, modifications or other family law matters in Bergen, Hudson, Union, Essex, Morris, Passaic, Sussex or Warren New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and is in no way intended to replace the advice of an attorney regarding your specific matter.

DUI Statute Changes Will Allow You to Keep Driving in NJ

The success of ignition interlock devices required for NJ Driving Under the Influence convictions and breath test refusals has been so effective at preventing future intoxicated driving that new legislation has been proposed. S-2427, sponsored by Senator Nicholas Scutari of Union County, was advanced by the Senate Judiciary Committee. The measure would require a first time offender with a blood alcohol content (BAC) of .08-.10% to have an ignition interlock device installed for 3 to 6 months and a first time offender with a BAC over .10% to have the device installed for 7 to 12 months. The ignition interlock device would be required in any vehicle the individual owns, leases or is a primary driver of. Once the device is installed, the individual would be entitled to a provisional license to drive to work or certain other approved places. Failure to install the device would be a disorderly persons offense. Drivers who do not lease, own or regularly drive a vehicle will have their licenses suspended for the time periods set forth above. Individuals with drug related DUI would be subject to installation of the interlock device for the same periods as those driving while under the influence of alcohol. This represents a substantial shift in the way DWI cases are managed. Presently drivers are subject to suspension resulting in severe financial hardship, including job loss, as a result of inability to operate a motor vehicle. Presently, drivers with BAC of .15% or more are subject to installation of the interlock device for 6 months after the license suspension period ends. In line with the current suspension periods, under the proposed legislation, second-time offenders would be required to install the device for 2-4 years and third-time and subsequent offenders would be required to install the ignition interlock device for 10-20 years. If you are facing DUI charges, you should consult an experienced driving while intoxicated defense 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. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.

"Inevitable Discovery", "Independent Source" Doctrines and Suppression in NJ

In the recently decided case of State v. Pheasant, police received a tip from an informant that defendant was selling marijuana but during a controlled buy they arranged, police did not find marijuana on defendant's person. Police then questioned defendant regarding where the marijuana was and he stated it was in his truck and they could "go get it." Defendant was charged with possession of a controlled dangerous substance (CDS), possession with intent to distribute CDS, possession of intent to distribute CDS within 1,000 of a school and possession of CDS with intent to distribute within 500 feet of a public housing facility, park or public building. Defendant sought to suppress the marijuana due to a warrantless search. The State argued defendant voluntarily disclosed the location of the CDS and even if the defendant's privacy rights were violated, a search warrant would have issued and the CDS would have been rightfully seized under the "inevitable discovery doctrine." The judge decided the State met the elements of inevitable discovery but failed to correctly interpret the doctrine. Additionally, the trial judge erred in incorporating elements of the "independent source doctrine" into the analysis when the State made no claim of independent source. The NJ Appellate Division held that the officer's inquiry regarding the CDS triggered defendant's right to privacy and he only disclosed the location of the marijuana when asked. Inevitable discovery requires that (1) proper, normal and specific investigatory procedures would have been followed in the investigation; (2) given the facts, the investigation would have resulted in discovery of the evidence; and (3) the discovery of evidence would have occurred independently of the discovery by unlawful means. State v. Sugar, 100 N.J. 214 (1985). In contrast, the independent source doctrine requires (1) the State had probable cause to search even without the illegally obtained information; (2) the state would have sought a warrant even without the illegally obtained knowledge; and (3) and illegality was a mistake and not "flagrant police misconduct." Because the State addressed only the inevitable discovery doctrine at trial the matter is remanded for reconsideration under the proper elements of that doctrine and the State is precluded from raising the independent source doctrine after the fact. A judge must submit very specific reasons for finding you guilty in a criminal 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 drug charges, CDS, distribution, drug possession, CDS in a motor vehicle 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.

Details Are Critical In Property Settlement Agreements

It is well established law that a substantial change of circumstance is required to warrant a modification of support. Aronson v. Aronson Being specific and detailed you are when drafting Property Settlement or Matrimonial Settlement Agreement between two parties is beneficial beyond words. The parties should include all the assets and liabilities accrued during the marriage even if it seems tedious, i.e. last four digits of account numbers, dollar amounts, etc. In addition, a paragraph describing the “standard of living” enjoyed during the marriage by the spouses and children should be included. As evidenced by the recent New Jersey Appellate Division case, Heard v. Dunbar, details as to how the parties’ incomes were established and the support obligations were calculated is imperative. In Heard, the Defendant requested a modification to his child support, college contribution and life insurance obligations. Although there was a Property Settlement Agreement, the parties were not specific as to how their incomes or the support obligation was calculated. In addition, the standard of living enjoyed during the marriage was not defined either. The Heard Court made it clear that a change to either parties’ income, increase or decrease, should be taken into account when considering a modification request. Unfortunately, the omission in the parties’ Agreement as to what the payments were based on made the Court incapable to make decisions regarding the modification of support without further discovery and/or a plenary hearing. If you are seeking or fighting a post-judgment modification, 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 Forfeiture Requires Proof Defendant Used the Property in Furtherance of a Crime

In State v. $569,950 in US Currency, a confidential informant alleged defendant was involved in a drug transaction from which defendant received substantial funds and that defendant was in danger of being robbed of his funds. The New Jersey State Police used the information obtained from the caller as probable cause to search defendant's hotel room. The police seized the cash and defendant's tractor trailer which was parked outside. The evidence located by the police in the illegal search was suppressed by the Judge as a result of a suppression hearing and all the police were left with to prove their case was the fact that defendant was in possession of a large sum of cash. Defendant explained the manner in which he obtained large amounts of cash through his trucking business, why he did not have prior tax returns or other information and that he had the cash on hand as a result of his intent to purchase a trucking operation in NJ. The court ruled that, in light of the explanation for the cash, the State failed to meet its burden of proof and dismissed the complaint against defendant. If you are charged with robbery, burglary, theft, attempt or other criminal charges it is imperative that you discuss your matter with an experienced criminal defense attorney immediately to insure your rights are protected. For more information about robbery, burglary, theft , shoplifting, attempt 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.

Trial Court Must Set Forth Basis of Need For Final Restraining Order in NJ

Restraining orders began as a resource to provide necessary protection for battered women and children. Since their inception, the nature of the call for domestic violence orders have changed. Sadly, domestic violence orders are used in the NJ Courts to the benefit of the accusing party as leverage in matrimonial actions. As a result of the misuse of restraining orders, Judges are required to set forth specific findings of fact regarding the events giving rise to the allegations, surrounding circumstances, any past domestic issues issues of the parties or one of them and the totality of the circumstances of the parties. Each domestic violence dispute involves a very specific fact pattern which should be fully set forth in Court prior to the Judge making a decision in the matter. In the event a defendant is unable to properly articulate a response to allegations, the Court should make every effort to obtain from the defendant a specific and accurate response as to allegations. In no event should a Judge simply interpret ambiguous statements of either party without further inquiry. If you are involved in a domestic violence matter, you should consult an experienced criminal law attorney immediately in order to protect your rights. For more information on domestic violence, criminal law or 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 Alimony to Embezzling Spouse in NJ

When a spouse commits "extraordinary, flagrant economic misconduct during the marriage" the court may deny her any further economic relief in the event of a divorce according the New Jersey Appellate Division's findings in Clark v. Clark. In Clark, the wife worked as bookkeeper in her husband's pharmacy and the husband afforded the wife an equal one-half interest in the business. Evidence was presented that a 2006 divorce proceeding filed by the wife was withdrawn when she learned the divorce may lead to discovery of her substantial embezzlement from the business In 2008 the husband filed for divorce and did discover the wife's embezzlement. Hunterdon County Family Part Judge Hany Mawla found the wife stole approximately $350,000 from the business and ordered her to repay that sum but also found her financially dependent and awarded her $600 per week in alimony. The Appellate Court held that, in spite of the rule that fault is not a bar to alimony, in this case the misconduct was so significant the wife may be barred from receiving alimony. The Appellate Division remanded the case to the Superior Court for reconsideration of the matter with the wife's misconduct in mind. If you are seeking a divorce and know or strongly believe your spouse's behavior has drastically altered your lifestyle financially you should speak with an experienced family law attorney immediately to protect your rights. For more information on alimony, support, equitable distribution, child support, palimony, 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.