Stop and Frisk. Residents in Brownsville, Brooklyn are routinely subject to a technique used by police known as "stop and frisk" which is permitted for the purpose of deterring crime when police have reason to believe the individuals being stopped and frisked are actively engaged in criminal activity at that moment. In Brownsville residents, who initially welcomed police presence because of a very high rate of serious crime in the area, are being stopped seemingly without reason. People cannot sit on their own front steps, ride bicycles, enter housing projects or other similar routine activities without being stopped, questioned, patted down and having their personal information recorded in a criminal database in spite of the fact that 99% of these people are found to possess no weapons or contraband. Now the very citizens who welcomed police fear them as nearly every resident in Brownsville has been subject to an average of at least 1 police stop per year for the past 4 years.
The question residents and authorities must consider is whether this level of police activity is justified and necessary for the protection of the citizens or whether use of stop and frisk measures has exceeded that required to protect the general public and become violative of the constitutional rights of freedom and privacy of those very citizens it was intended to protect.
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Foreclosure

In the event of foreclosure bankruptcy is an option for a property owner but with the many programs now available rushing to file bankruptcy is not necessarily recommended. Federal legislation now mandates forestalling the foreclosure process in the event the homeowner requests an extension. In addition, banks are not equipped to be property owners or managers, especially of vacant properties which give rise to the likelihood of vandalism and deterioration. In the current market where so many properties, both occupied and unoccupied, remain on the market unsold even at drastically reduced prices lenders are very willing to revise loans so that borrowers, especially homeowners, can retain properties. Of course, there are considerations such as tax implications which may be triggered through processes such as short sales or debt forgiveness by lenders.
In the event of foreclosure there are many options and considerations making it advisable to retain counsel to assist in the resolution of any foreclosure.
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Corporate Principal Liability

There is an incorrect assumption frequently made on the part of corporate principals- that because they are corporate officers acting on behalf of a business they are not subject to liability for the acts of the Corporation. Through the years case law has continued to address what is known as "piercing the corporate veil" in which the actions of the corporate officers and directors may be examined to determine whether they knew or should have known about harmful acts being undertaken by the Corporation. Individuals wishing to protect themselves and their assets from liability for injuries to person or property caused by their businesses are often led to believe that an entity such as a Corporation or Limited Liability Company will fully protect them. It is only later these individuals learn that they were not fully advised. In truth, the more removed the officers and directors of an entity are from the daily corporate operations the more likely it is they will be protected. In a closely held business, such as a single member LLC or family business it is more likely the officers will be imputed with knowledge in the event of a suit for damages against corporate acts.
In the recent New Jersey case of William Allen v. V&A Brothers Inc. a landscaper's work collapsed and the homeowners sought monetary damages, as well as treble damages under the home improvemet regulations. The homeowners were awarded damages against the businesses but the Judge dismissed the case as to the company owners. The homeowners were unable to recover damages from the company due to lack of funds and appealed the dismissal of damages against the company owners. On appeal it was decided that the Consumer Fraud Act did not require the normal piercing of the corporate veil but rather, through the use of the word "person" in N.J.S.A. 56:8 et. seq. the Act itself provided statutory authority to impose penalties directly against the principals of the company.
Corporate entities are under a duty to act fairly and reasonably in undertaking their operations and should they fail to do so the liability may reasonably be placed upon those at the helm of such entities.
For more information on Business Law visit HeatherDarlingLawyer.com or contact Heather J. Darling, Esq.

product liability

Toyota is undergoing yet another recall. Although consumers have a right to safety there is also a need to understand basic automobile functions. When trucks roll over during high speed turns is the consumer under a duty to exercise basic caution and turn at a vehicle appropriate speed? Does basic driver education not teach that when a vehicle is accelerating uncontrolably merely shifting the vehicle to neutral and applying breaks or coasting to a stop will remedy the situation. By failing to exercise due care to protect themselves do consumers have the right to place full onus on the automaker? In todays economy is a company such as Toyota able to withstand recall after recall? It seems that if copanies are to address corporate bonuses then juries should be addressing "consumer bonuses" in the form of rewards for failure to exercise due care.

NJ alimony modification under economic strain

Change of Circumstances on the part of the payor or payee is required for an unscheduled modification of alimony in matrimonial matters. In light of recent economic factors, many spouses find themseleves in a different position financially than they anticipated when negotiating property settlement agreements or when they presented testimony relating to their finances to a judge who established alimony. This has resulted in many payors seeking reduction of alimony to former spouses. This week, the New Jersey Appellate Court reaffirmed that any requests for reduction in alimony must be well supported and that a mere claim of reduced income without adequate factual basis or increased expenses without justification will not satisfy payor's burden of proving changed circumstances necessitating a reduction in alimony.

In Kisberg v. Kisberg, the parties negotiated their settlement and the payor should have been aware of his financial means and accounted for differences between existing conditions and potential changes. The downturn in the economy was not viewed by the court as an adequate explanation, without further proof, that the new circumstances could not have been contemplated at the time the agreement was entered into. A negotiated settlement, if reasonable and fair to both parties, is a wise option. When a party feels they are being economically pressured into arriving at a settlement agreement they are taking a calculated risk and balancing present financial strain against possible future finacial strain.

Whether it is the payor or payee who feels compelled to enter into a settlement agreement they are truly unhappy with, for economic or any other reason, they must bear in mind they will be required to give testimony on the record during the divorce proceeding. The testimony will include, at least, the following: they negotiated the agreement, were not coerced or under duress, reveiwed it, discussed it with their attorney, had adequate opportunity to think about it, had adequate opportunity to ask questions about it, were satisfied with the answers to any questions asked and only after all of those things did they sign it. After making such assertions on the record, it is very difficult to later show that there is an actual change in circumstances that could not be forseen at the time the agreement was entered into.

When entering into a negotiated settlement as to alimony it is always wise that a party either review it thoroughly with counsel and make sure that their attorney is aware of all circumstances, including long-term recurring illness of the payor or payee, work history of both parties, education, earning capacity of parties, and anything else which may come to bear upon the future income of either the payor or payee in the matter.

For more information on New Jersey matrimonial matters or to obtain counsel visit HeatherDarlingLawyer.com.

NJ Drug Court standards

According the the NJ State Judiciary website, the mission of drug courts is "to stop the abuse of alcohol and other drugs and related criminal activity." Drug courts exist within the Criminal Division of the Superoir Courts of New Jersey and are designed to assist non-violent drug users with potential for rehabilitation. In drug court, the judge monitors a participant's recovery inside the courtroom weekly. In the interim the participant is supervised by probation officers, substance evaluators, and drug treatment specialists. Regular and consistent monitoring was selected to reduce the opportunity for relapse and enable swift intervention in the event of relapse.

A standardized assessment process is utilized to identify eligible offenders and an individual applying to the Court for drug court will most likely be admitted or denied based on the substance of this report although the attorney or other advocate for the individual may attend the team meeting and make arguements on behalf of an individual who would otherwise be denied. Clearly the arguments made must be based on sound reasoning indicating that the individual is in fact likely to respond well to treatment. The likelihood that the individual wishing to enter the program will respond well to treatment is the key element of drug court admissibility. Additionational important factors are prior failed attempts within the program, criminal history, and nature of offense committed.

In regard to the nature of the offense committed, it is required that the offense be non-violent in order to balance the interest in the individual in being rehabilitated is not overly burdensome on the community's right to be safe from harm. Recently, the issue of whether an individual involved in burglaries was a viable candidate in light of the non-violent offender provision of drug court.

In many cases, individuals with drug habits will burglarize homes in order to steal money or other items they may sell to support thier drug habits. The issue then comes down to whether this makes the offender violent. Although burglary does give rise to the potential for violence in the event the offender encounters anyone inside the structure, it is also very possible that a burglary will occur without any violent incident. The outcome of this case will clearly have substantial effect on the ability of potential participants to enter drug court in the future and the ability of the NJ Drug Courts to carry out their mission "to stop the abuse of alcohol and other drugs and related criminal activity."

For more information on the NJ Drug Court program visit www.judiciary.state.nj.us/criminal/crdrgct.htm.

For more information on matters relating to criminal law or for legal representation visit HeatherDarlingLawyer.com.

Stalkers Beware

The New Jersey Supreme Court has held that stalking is stalking, and no showing that the Defendant intended to cause fear is required.

The stalking statutue, N.J.S.A. 2C:12-10, was enacted in New Jersey in response to "persistent, distressing or threatening behavior generally perceived as more serious than harassment, at least in its persostence, but not yet ripened into terroristic threats or assualt." Title 2C NJ Criminal Code Ann. (2007)

N.J.S.A. 2C:12-10(b) reads:
A person is guilty of stalking, a crime in the fourth degree, if he purposefully or knowingly engages in a course of conduct directed at a specific person that would cause a reasonable person to fear bodily injury to himself or a member of immediate family or death to himself or a member of his immediate family.

The statute includes a "course of conduct" meaning repeated incidents. Repeated is defined as two or more occasions.
Originally the statute included only visual or physical proximity but was later expanded to include "communication" in order to encompass the internet, and other electronic media and devices.
The statute includes not only the observation of the individual but also their "immediate family" which includes any person who regularly resides in their household.

Based upon the terms of the statute then, an example of a violation of N.J.S.A. 2C:12-10 would occur in the event that an individual used a social networking site, such as Facebook, to "observe", by way of information included on such site published or approved by the person being observed in the event that such observation may arouse fear in the individual observed.

The New Jersey Court in State v. Gandhi, held that the statute requires only a showing that the defendant acted in a way that would cause a reasonable person to fear harm or death, and no showing was is required that the defendant intended, or was aware of, the effect of that conduct on the individual observed.

The use of social networking sites greatly expands ones exposure to would be violators of this statute. In the event that an individual is informed by another to cease contact on a social networking site, deleted by another on such a site, twitter, or the like, the individual advised to cease the actions complained of should do som immediately in order to avoid exposure to N.J.S.A. 2C:12-10 and similar statutes.

For more information relating to matters of criminal law please visit HeatherDarlingLawyer.com