Megan’s Law in NJ: Juvenile Offenders v. Adult Offenders

Posted on May 14, 2012 by bklugh
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In the recent Monmouth County Superior Court decision State of New Jersey in the Interest of A.C., the court denied the juvenile’s motion for a jury trial.  In sum, the juvenile was charged with two acts of 1st degree sexual assault and a separate 2nd degree sexual assault stemming from two separate instances relating to the same victim.  While a juvenile’s right to a jury trial involves a unique Constitutional issue that is discussed in a related blog article, the case also gives rise to a discussion comparing the classification, punishment, and stigma associated with juveniles and adults under Megan’s Law.

 

Juvenile sexual offenders are required to register in the same manner as adults.  As such, the sex offender registry in New Jersey is divided into three tiers.  If the risk level is low, the offender is considered a Tier One offender, and only law enforcement agencies are notified.  A Tier Two offender is considered a moderate risk, and in addition to law enforcement, the information may also be released on the internet, to schools, licensed day care centers, summer camps, and registered community organizations.  Most offenders fall within Tier Two.  Finally, a Tier Three offender is considered high risk, and members of the public will have access to the sexual offender information via the internet and the offender is obligated to inform neighbors of their standing.

 

However, unlike adults who may be incarcerated for life depending upon the seriousness of their crime, juveniles may be incarcerated for a maximum of four years (unless waived up to adult status).  Further, as established in this case, juveniles, unlike adults, are not afforded the right to a jury trial.  New Jersey courts and legislature have consistently held that the role of the court system / incarceration as it relates to juveniles is to provide a minimal level of punishment, while focusing on the rehabilitation process.  Contrastingly, the adult criminal system’s main focus is to punish wrongful conduct, while protecting societal safety.  Despite the differences between the juvenile and adult system when it comes to incarceration, if a juvenile and an adult are classified pursuant to the same Tier system, and, generally required to register on the internet, are juveniles really being treated with more leniency or are they subject to an equally burdensome level of stigmatism?

 

An individual may, fifteen years following conviction or release from a correctional or juvenile facility, apply to the Superior Court of the State to terminate the obligation to register.  Relief is provided if an individual can prove that no subsequent offenses were committed since the initial offense and the court feels that the individual will not pose a threat to the safety of others.  Because Megan’s Law was only passed in 1996, it is uncertain whether courts will be more lenient in terminating a juvenile’s obligation to register.

Timothy Farrow, of Dash Farrow, LLP, is an experienced criminal defense attorney and former Prosecutor who handles these offenses and crimes, misdemeanors, and traffic offenses of all levels.  When you need experienced, focused, and responsive legal help, call Dash Farrow, LLP at 856-235-8300 or contact us online at www.dashfarrow.com.  We serve individuals and businesses throughout Burlington and Camden County and all of South Jersey.

 

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Still No Jury Trial for Juveniles in NJ

Posted on May 14, 2012 by bklugh
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In State of New Jersey in the Interest of A.C., a juvenile was arrested in December 2010 as a result of a three count complaint alleging that he had committed two acts of first degree aggravated sexual assault and a second degree sexual assault on a separate occasion.  The previous blog post compared juvenile and adult status under Megan’s Law, while this post focuses on the court’s policy considerations in denial of the juvenile’s right to a jury trial in the A.C. case.

The defendant challenged the constitutionality of N.J.S.A. 2A:4A-40, insofar as it denies a juvenile the right to a jury trial, asserting violations of the New Jersey Constitution, Article 1, §§ 9 and 10, and the United States Constitution under the Sixth and Fourteenth Amendments.

The court’s denial of the defendant’s claim for a jury trial rested on policy concerns that separate juvenile court from criminal court.  First, the Juvenile Code makes clear that juvenile court proceedings are not criminal prosecutions.  Unlike standard criminal court, the primary objective of the juvenile system is to provide rehabilitation, while providing a minimal amount of incarceration consistent with the public’s interest in health and safety.  Alternatively, the criminal courts primary objective is to punish adult wrongdoers for illegal acts. Further, the juvenile system is intended to preserve the unity of the family whenever possible and, at the same time, ensure that incarceration provides an adequate program of supervision, care and rehabilitation for juvenile offenders.  Ultimately, bench trials within the Family Division allow the court system to promote the rehabilitative process, while maintaining the dichotomy between juvenile proceedings and criminal trials.  However, as noted in the previous blogs, juveniles suffer the same serious consequences of Megan’s Law as adults, so there is a real question as to whether they should therefore have the same right to a jury trial.

Timothy Farrow, of Dash Farrow, LLP, is an experienced criminal defense attorney and former Prosecutor who handles these offenses and crimes, misdemeanors, and traffic offenses of all levels.  When you need experienced, focused, and responsive legal help, call Dash Farrow, LLP at 856-235-8300 or contact us online at www.dashfarrow.com.  We serve individuals and businesses throughout Burlington and Camden County and all of South Jersey.

 

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New Road Rage Law in NJ

Posted on April 26, 2012 by bklugh
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Governor Christie has signed a new road rage law, known as “Jessica Rogers Law”, named for a victim who was paralyzed as a result of a road rage accident.  The new law upgrades the offense of assault by auto in cases involving road rage.  It creates a third degree offense which is punishable by three to five years imprisonment if serious bodily injury results and a fourth degree offense punishable by up to 18 months imprisonment if bodily injury results.

Under the law, a person is guilty if he/she operates an automobile in an aggressive manner directed at another vehicle and bodily injury results.  Aggressive manner includes, but is not limited to, unexpected altering of speed, erratic and improper lane changes, disregarding traffic control devices such as stop signs and lights, failing to yield the right of way, or following another vehicle too closely.

Prior to this law, a person could only be charged at most with a fourth degree assault by auto under N.J.S.A 2C:12-1c(1) based upon reckless driving that results in serious bodily injury.  Although this new law is well-intentioned, it will likely be very difficult for the State to distinguish “aggressive” driving directed at another driver from general reckless behavior under the lesser charge.  Another problem will likely be establishing which driver was truly the aggressor.

Timothy Farrow, of Dash Farrow, LLP, is an experienced criminal defense attorney and former Prosecutor who handles these offense and crimes, misdemeanors, and traffic offense of all levels.  When you need experienced, focused, and responsive legal help, call Dash Farrow, LLP at 856-235-8300 or contact us online at www.dashfarrow.com.  We serve individuals and businesses throughout Burlington and Camden County and all of South Jersey

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No New Jersey 2nd Degree Murder Charge

Posted on April 19, 2012 by bklugh
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On Thursday, April 13th, prosecutors filed a 2nd degree murder charge against neighborhood watch volunteer George Zimmerman in the killing of 17 year-old Trayvon Martin.  While many legal experts anticipated that Zimmerman would be charged with the lesser crime of manslaughter, the prosecution opted to pursue a charge that will require proof that Zimmerman intentionally shot Martin.  Because the prosecution would find significant difficulty in proving premeditation, a charge of 1st degree murder would be inappropriate given the facts of the case.

Under Florida law, 2nd degree murder is the unlawful killing of a person when perpetrated by any act imminently dangerous to another and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual.  The maximum sentence for second-degree murder in Florida is life in prison and the minimum penalty is 25 years.  Had the prosecution chosen to proceed in filing a charge of manslaughter, they would not be required to show that Zimmerman committed the murder with specific intent, but rather a manslaughter conviction could include a killing that involves mistake or accident.  Under Florida law, a manslaughter conviction would carry a maximum of 15 years in prison.

Contrastingly, New Jersey state law does not include a crime of 2nd degree murder.  Rather, New Jersey Criminal Statute 2C:11-2 distinguishes between murder, aggravated manslaughter, and manslaughter.  A person is guilty of criminal homicide if he “purposely, knowingly, recklessly causes the death of another human being.”  Under the applicable portion of the statute, criminal homicide constitutes murder when: (1) the actor purposely causes death or serious bodily injury resulting in death; or (2) the actor knowingly causes death or serious bodily injury resulting in death.  Under the applicable portion of the statute, criminal homicide constitutes aggravated manslaughter (a crime of the 1st degree) when: (1) the actor recklessly causes death under circumstances manifesting extreme indifference to human life; or (2) the actor causes the death of another person while fleeing.  Lastly, under the applicable portion of the statute, criminal homicide constitutes manslaughter (a crime of the 2nd degree) when: (1) it is committed recklessly; or (2) a homicide which would otherwise be murder under section 2C:11-3 is committed in the heat of passion resulting from a reasonable provocation.

The 2nd degree murder charge under Florida law bears similarities to both a murder charge and an aggravated manslaughter charge under New Jersey.  Most notably, a murder sentence in New Jersey is 30 years to life, similar to the 2nd degree murder sentence in Florida of 25 years to life.  Moreover, neither Florida’s 2nd degree murder charge nor New Jersey’s murder charge require premeditation.  New Jersey’s murder charge requires purpose or knowledge of serious bodily harm, which indicates a level of intent as similarly required under Florida’s 2nd degree murder statute.

Meanwhile, New Jersey’s aggravated manslaughter statute requires recklessness under the circumstances manifesting extreme indifference to human life, which is arguably similar to the “depraved mind” vocabulary under the Florida standard.  A conviction of aggravated manslaughter under New Jersey law mandates a sentence between 10 – 30 years.

The prosecution in the case will be required to prove the charge of 2nd degree murder beyond a reasonable doubt.  Further, Zimmerman will not be entitled to release on bail prior to his trial.  The Florida judicial system has what is known as an Arthur hearing, which can take place weeks after the arrest, to determine whether he should be allowed to post bond.  The case will almost certainly include a pretrial hearing to determine whether the state’s Stand Your Ground law, which grants broad protections to people who claim to have killed in self-defense, applies; if the judge finds that Mr. Zimmerman acted appropriately, the case will end there.  If the judge decides that the protections of the law do not apply, the case will go forward.

Regardless of the state laws, a conviction on 2nd degree murder requires clear evidence and decisive legal guidance.  An attorney must understand the legal principles underlying the various levels of homicide and make an informed decision in order to prevail at court.  In filing a 2nd degree murder charge, the special prosecutor is likely attempting to provide for the public’s retributive desire for firm punishment.  Moreover, the charge may indicate that the prosecution has proof indicating that Zimmerman was the instigator in the deadly altercation.  It is also possible that by filing a 2nd degree murder charge, the prosecution is attempting to force a plea bargain at the level of manslaughter.  A prosecutor considering the same case in New Jersey would need to carefully consider the facts in determining whether to file a murder charge or an aggravated manslaughter charge.  Expertise in the state criminal code is essential when making a decision that could distinguish guilt from innocence and life imprisonment from freedom.

Timothy Farrow, of Dash Farrow, LLP, is an experienced criminal defense attorney and former Prosecutor who handles these offense and crimes, misdemeanors, and traffic offense of all levels.  When you need experienced, focused, and responsive legal help, call Dash Farrow, LLP at 856-235-8300 or contact us online at www.dashfarrow.com.  We serve individuals and businesses throughout Burlington and Camden County and all of South Jersey

 

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The Trayvon Martin Case Under NJ Self-Defense Laws

Posted on April 12, 2012 by bklugh
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“Stand Your Ground:” The Trayvon Martin Case Under NJ Self-Defense Laws

The national media attention created by the controversial Trayvon Martin case in Florida provides an opportunity to compare the Florida “Stand Your Ground” statute with New Jersey self-defense laws.

Florida Statute 776.012 provides that “a person is justified in the use of deadly force and does not have a duty to retreat if he or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.”  By providing an objective standard as it relates to “imminent death or great bodily harm to himself,” the Florida Statute creates significant grey area for factual interpretation in a given case.  Under the “Stand Your Ground” statute there is no requirement to retreat before using force if under threat of bodily harm.

Under the “Stand Your Ground” statute, the Trayvon Martin case will likely turn on the issue of whether or not the jury believes that George Zimmerman was being physically assaulted by Trayvon Martin at the time of the shooting.  The jury must believe that under those circumstances, George Zimmerman was under such threat of death or great bodily harm that a reasonable person would have been justified in using deadly force.  While the necessity of the deadly force utilized by Zimmerman will be hotly debated among the attorneys and the court of public opinion, the “Stand Your Ground” statute did not require that Zimmerman retreat before using force if he was attacked by Martin.  However, if the evidence provides that Zimmerman was the aggressor, he will likely have no defense under the “Stand Your Ground” statute.

Contrastingly, New Jersey does not have a version of the “Stand Your Ground” statute.  Accordingly, New Jersey applies self-defense laws pursuant to the state Criminal Code.  Under New Jersey’s Criminal Code 2C: 3-4, “the use of force upon or toward another person is justifiable when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.”  However, a person using self-defense cannot exceed the level of force with which the attacker has threatened the defender.  Moreover, retreat is required if an actor knows that he or she can avoid the necessity of deadly force in complete safety.

Similar to Florida’s “Stand Your Ground” statute, interpretation of New Jersey’s self-defense laws depends heavily upon the facts of the case.  Unlike Florida’s law, New Jersey law is less willing to allow an individual “stand your ground” unless the circumstances necessitate confrontation.  Even under such circumstances, the court will carefully consider the level of the force of the attacker in analyzing the relative force used by the victim.

If the confrontation occurred in New Jersey, the court’s decision would likely turn on the issue of whether George Zimmerman was the aggressor in the confrontation or the victim of an unwanted assault.  If the facts indicate that Zimmerman was attacked by Martin, the court would consider whether Zimmerman’s life was at risk, therefore, justifying the deadly response.  Regardless, the facts indicate that Martin was not carrying a weapon, which will aid the prosecution’s case moving forward.  Self-defense law is fact-specific in any state and the outcome of the Trayvon Martin case will hinge on the factual interpretation of the case.

Florida Statute: http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0776/Sections/0776.013.html

New Jersey Code:

http://law.onecle.com/new-jersey/2c-the-new-jersey-code-of-criminal-justice/3-4.html

Timothy Farrow, of Dash Farrow, LLP, is an experienced criminal defense attorney and former Prosecutor who handles these offenses and crimes, misdemeanors, and traffic offense of all levels.  When you need experienced, focused, and responsive legal help, call Dash Farrow, LLP at 856-235-8300 or contact us online at www.dashfarrow.com. We serve individuals and businesses throughout Burlington and Camden County and all of South Jersey.


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NJ Bans Synthetic Marijuana

Posted on March 5, 2012 by bklugh
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On Wednesday, New Jersey Attorney General Jeffrey S. Chiesa announced a statewide ban on all forms of synthetic marijuana, which are combinations of chemicals designed to mimic the effect of marijuana.  These drugs were marketed under the names of “K2” and “Spice” and “Space Cadet.”

Under the ban, this drug is considered a controlled dangerous substance and is in a class with cocaine and heroin.  Violators would be charged with a Third Degree Crime and thus face three to five years in prison and a fine of up to $25,000.

Because these drugs are not regulated by any agency standards, the user has no idea what they are actually taking, and reported side effects range from lung damage to death.

For more information, see the following story:  http://abclocal.go.com/wpvi/story?section=news/local&id=8563458

Timothy Farrow, of Dash Farrow, LLP, is an experienced criminal defense attorney and former Prosecutor who handles these offense and crimes, misdemeanors, and traffic offense of all levels.  When you need experienced, focused, and responsive legal help, call Dash Farrow, LLP at 856-235-8300 or contact us online.  We serve individuals and businesses throughout Burlington and Camden County and all of South Jersey.

 

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Tim Farrow Winning in Mt. Laurel Municipal Court

Posted on February 2, 2012 by tbenn
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Timothy Farrow has been a very familiar face over the years in Mt. Laurel Municipal Court, but not one necessarily one the Prosecutor looks forward to seeing.  Over the last few months, he has had some hard-fought battles with victories worthy of the effort.  In one case, a client was charged with DWI in violation of N.J.S.A. 39:4-50, and the client came to Farrow after she was not satisfied with the efforts of her prior attorney.  After several efforts at negotiation with the Prosecutor, including presentation of an expert report, he was able to convince the Prosecutor to accept a guilty plea to a lower Tier 1 DWI instead of the original Tier 2 offense.  The Prosecutor presented the plea, but the Judge would not accept the downgraded plea.  Farrow was forced to appear yet another time and made another pitch himself to the Judge and finally convinced him to accept the plea.  Farrow successfully lowered his client’s license suspension by four (4) months, from the original minimum seven (7) months suspension to three (3) months license suspension.

Farrow also was able to help two clients avoid a criminal record.  One client was charged with Theft based upon the act really committed by another person.  He was able to get that charge dismissed.  Another client was charged with Disorderly Conduct and faced losing a job as a result.  Farrow successfully got that charge downgraded to a local ordinance violation, which saved the client from a criminal record that would have caused him to lose his job and potential future employment.

Timothy Farrow, of Dash Farrow, LLP, is an experienced criminal defense attorney and former Prosecutor who handles these offense and crimes, misdemeanors, and traffic offense of all levels.  When you need experienced, focused, and responsive legal help, call Dash Farrow, LLP at 856-235-8300 or contact us online.  We serve individuals and businesses throughout Burlington and Camden County and all of South Jersey.

 

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NJ School Boards Latest Victims of Mandatory Background Checks

Posted on February 2, 2012 by tbenn
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Timothy Farrow has been telling his clients for years now to be very careful about pleading guilty to a criminal offense, even if it is just a “minor misdemeanor”.  The main consequence of course is employment.  With the expansion of the internet, background checks are much easier to conduct.  It used to be only possible to obtain a background check through the NJ State Police.  Now just type it into google and you will see pages and pages of sites and companies that do them.  Also unfortunately largely due to aggressive employment lawyers, employers are more and more concerned about hiring a person with a criminal record.

In addition to this issue, Farrow has also started advising clients of other potential background checks they might face.  These include community and school-related activities involving children.  Even something as simple a serving as an assistant little league coach now requires a background check in most towns.  This latest news with NJ school board members being terminated due to background check issues is of no surprise.  Some members are facing removal based on procedural issues in obtaining a check, but a large amount of terminations are due to actual records.

It might be hard for some in the public to believe that people in a position like a school board could have a criminal record, but based on some common misdemeanors it is not surprising.  Picture an 18 or 19 year old charged with Underage Drinking; Disorderly Conduct based on intoxication or related behavior; Simple Assault based on a stupid fight; or Shoplifting for sticking a candy bar in their pocket.  The “kid” goes to court and the prosecutor tells them they will just get a small fine, so they plead guilty.  Twenty years later they are on a school board.  Did they ever think that stupid night in college would cause them to get kicked off the school board?

So please contact an attorney like Timothy Farrow if you or your child faces a criminal offense.  If you have already made the mistake of pleading guilty, contact him about an expungement.  An expungement will remove the record and seal it from potential exposure.

For more about school board background checks, see the following story:

http://www.nj.com/news/index.ssf/2012/01/nj_orders_200_school_board_mem.html

Timothy Farrow, of Dash Farrow, LLP, is an experienced criminal defense attorney and former Prosecutor who handles these offense and crimes, misdemeanors, and traffic offense of all levels.  When you need experienced, focused, and responsive legal help, call Dash Farrow, LLP at 856-235-8300 or contact us online.  We serve individuals and businesses throughout Burlington and Camden County and all of South Jersey.

 

 

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Defending Your Home in NJ | A little Easier in Oklahoma than New Jersey

Posted on January 11, 2012 by tbenn
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On New Year’s Eve in Oklahoma, Sarah McKinley shot an armed intruder to death, while the accomplice to the break-in fled.  Last week it was announced that Ms. McKinley will not face charges for the shooting, while the surviving accomplice was charged with first-degree murder.

How would the same situation have played out in New Jersey?  To know that, the differences in the laws of the two states must be explored.  First, let’s address the states’ respective defense of property laws.  In Oklahoma, a person is entitled to use deadly force if the person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling or residence.

In New Jersey, unlawful entry alone is not enough to draw a gun.  The use of deadly force is only justifiable if the person against whom the force is used is attempting to dispossess him of his dwelling unlawfully, or if that person is attempting to commit or consummate arson, burglary, robbery or other criminal theft or property destruction.  In addition, the intruder must have employed or threatened deadly force against or in the presence of the actor; or the use of force other than deadly force to terminate or prevent the commission or the consummation of the crime would expose the actor or another in his presence to substantial danger of bodily harm.

So when Ms. McKinley called 911 and asked the operator whether she could shoot the intruder, it was a fairly easy question to answer in Oklahoma.  The operator told her to do what she needs to do to protect her baby, and turns out she was right.  It was an intruder breaking into her house, so that was enough.  It turns out that he was armed, so it probably would have been okay in New Jersey, but the operator would have had to ask at a least one more question before giving that same reply here.

Timothy Farrow, of Dash Farrow, LLP, is an experienced criminal defense attorney and former Prosecutor who handles these offenses and crimes, misdemeanors, and traffic offense of all levels.  When you need experienced, focused, and responsive legal help, call Dash Farrow, LLP at 856-235-8300 or contact us online at www.dashfarrowlaw.com. We serve individuals and businesses throughout Burlington and Camden County and all of South Jersey.

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Sandusky’s Attorney Should be Ashamed

Posted on November 15, 2011 by tbenn
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As with much of America, I was shocked and appalled at Jerry Sandusky’s interview.  Unlike most of America, it was not so much by what he said, but that he and his attorney said anything at all.  I recognize that our clients always have the final say, and yes I have had some clients go against my advice and make the wrong decision.
However, in watching that interview, it is hard to imagine that his attorney gave him the correct very stern advice to keep his mouth shut.  While respecting Mr. Sandusky’s presumption of innocence, such an interview does nothing but destroy such presumption. To make matters worse, the attorney himself chose his own self interest over his clients in opening his own mouth.  Bob Costas asked him if he would let his children be with his client.  Now sure, you cannot say no in that position, but I would not hesitate to tell Mr. Costas that I am his attorney and not an expert or character witness.  It would therefore be inappropriate, unethical, and a conflict of interest to answer that question.  But he chose the spotlight over the best interests of his client and for that I say, shame on you.

Timothy Farrow, of Dash Farrow, LLP, is an experienced criminal defense attorney and former Prosecutor who handles these offenses and crimes, misdemeanors, and traffic offense of all levels.  When you need experienced, focused, and responsive legal help, call Dash Farrow, LLP at 856-235-8300 or contact us online at www.dashfarrowlaw.com. We serve individuals and businesses throughout Burlington and Camden County and all of South Jersey.

 

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