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.