As discussed in my previous blogs the State's ability to offer the testimony of a detective in a case in which the charge is intent to distribute a controlled dangerous substance (CDS) denies the defendant a fair trial. Many States do not allow such testimony because it allows a detective who has no first hand knowledge of the case give his personal opinion that the quantity of the drugs seized, along with the packaging, purity, and other factors leads him to believe that the person who possessed those drugs possessed them with intent to distribute them.
Although the New Jersey courts have allowed such testimony and give the prosecution this powerful advantage, many prosecutors attempt with increased creativity to stretch the advantage. In the recent case State v. Coley (Decided in September, 2912), the Appellate Division reversed a conviction in which the State's detective expert was allowed to testify that in his hypothetical question the "hypothetical target", "was probably distributing drugs." The Appellate Division held that reference to a "target", was a undoubtedly a "thinly-veiled reference", to the defendant on trial.
New Jersey Criminal Defense attorneys must continue to be vigilant and object to such testimony since the jury often sees no difference between the hypothetical person "X", being referenced by the prosecutor in his or her hypothetical and the defendant. Any attempt by the prosecutor to infer the defendant's guilt through the testimony of the opinion of the detective/expert must be objected to immediately.
To counter such testimony, in the right case, the defense attorney should offer the testimony of his or her own expert to testify that such quantity, purity and packaging is consistent with someone who possessed the CDS for personal consumption. This type of testimony is very important when the quantity of drugs seized is not large.
Law Office of Vincent J. Sanzone, Jr.
Vincent J. Sanzone, Jr., Esq.
CriminalDefenseNJ.com
Telephone: (908) 354-7006
September 10, 2012
New Jersey Criminal Defense Attorney, Union County Criminal Defense Attorney, Elizabeth NJ Criminal Defense Attorney, Hudson County Criminal Defense Lawyers, Newark Criminal Lawyers, Essex County Criminal Lawyers
Showing posts with label best criminal defense nj. Show all posts
Showing posts with label best criminal defense nj. Show all posts
Monday, September 10, 2012
Thursday, July 19, 2012
How to Win Your Criminal Case; Use of Cell Phone Tower Records.
In the State of New Jersey the prosecutor has the burden of proving its case beyond a reasonable doubt, and the defendant need not produce any evidence of his innocence’s However, in reality, as any criminal defense attorney will tell you who is being honest with himself will say that in most criminal cases if you want the jury to acquit your client the defendant must actually present sufficient evidence to prove he or she is innocent and did not commit the crime. That unfortunately is the reality of the criminal justice system in this country. Having said that an important tool that a criminal defendant can use to prove his innocence’s is the cell phone tower record subpoena.
In some cases it is relevant to prove that the defendant was not at the scene or within the closest tower range of a crime or incident. In that case do not expect the investigating authorites to subpoena these records and prove that your client was not at the scene of the crime. In reality and truth they have zero interest in obtaining any evidence to prove that your client is innocent. At every crime scene there is usually some mobile device which will reveal which parties were within a specific tower range.
In law enforcement terminology this is referred to as a cell tower “dump”, which specifically means to the carriers that you are seeking data on all subscribers who were near a tower during a certain period of time. Usually such requests will produce hundreds if not thousands of names and phone numbers depending on the time period and length of time requested.
Therefore, when location of your client is an issue the defense attorney must exercise his subpoena power to
Pursuant to a subpoena defense counsel can subpoena the tower records from the defendant’s mobile cell phone service provider to obtain the names and numbers of all subscribers who were receiving and transmitting phone messages on a certain date and time. With all mobile phones there is a GPS system imbedded into the phone which reveals were the phone is transmitting from. The carriers usually charge between $50.00 to $75.00 per hour for this service but in the right case can mean the difference between the defendant being convicted and going to jail and exoneration.
In addition to exonerating the defendant the cell phone tower records can be used for impeachment purposes against a co-defendant, cooperating witness, or others, who perjury themselves by stating that they were nowhere near the scene of the alleged crime or incident.
In the final analysis the cell phone tower “dump” subpoena is an important defense tool that must be pursued in the right case.
Law Office of Vincent J. Sanzone, Jr.
Elizabeth, New Jersey
Tel. No. (908) 354-7006
Dated: July 19, 2012
Use of cell phone records in criminal cases, NJ Criminal Defense Attorneys, NJ Criminal Attorneys, NJ Criminal Lawyers, NJ Best Criminal Lawyers, NJ Best Criminal Defense Attorneys, How to win your criminal jury trial, Elizabeth criminal defense attorney, Newark Criminal Lawyers, Essex County Criminal lawyers, Best Ocean County Criminal lawyers, Monmouth County Criminal Lawyers, Best Union County Criminal Attorneys
Thursday, December 22, 2011
Motion to Suppress Evidence: How to Beat the Criminal or Driving While Intoxicated Charge in New Jersey
December 22, 2011, today, the Superior Court of New Jersey, Appellate Division in State v. Thomas W. Bernokeits, Jr., affirmed well established case law regarding the right of a police officer to order a motorist out of his vehicle in order to perform a field sobriety test.
In that case Mr. Bernokeits was driving in Seaside Heights, New Jersey (his first mistake), after spending some time at the “Bamboo Bar” (his second mistake).
Mr. Bernokeits vehicle was stopped as claimed by the police officer because the vehicle and tinted windows and a loud muffler. Once pulled over, the officer asked Mr. Bernokeits whether he had consumed any alcohol beverages.
Of course, Mr. Bernokeits had the right to remain silent and not give a response, but he didn’t, and gave the standard usual reply, “I only had one beer" (his third mistake).
The officer then decided to order Mr. Bernokeits out of the vehicle to perform a field sobriety test. The officer’s reason for that, according to his testimony, was that first, he smelled hard liquor on his breath and not beer, and second, he admitted that he had just left the “Bamboo Bar”, and third, it was late at night.
Mr. Bernokeits argued before the Appellate Division that the officer needed probable cause to ask him to perform the field sobriety test relying on the seminal case State v. Jones, 326 N.J. Super. 234 (App. Div. 1999). In that case the appellate division held that the mere smell of alcohol emanating from the motorists breath or vehicle, and the admitting that alcohol was consumed, without more facts (for example the plain view sight of an open container), was insufficient to sustain probable cause to search the motor vehicle. Therefore, Mr. Bernokeits argued that the police officer erred in requesting him to take the test because of the officer’s smell of alcohol on his breath.
The court rejected this argument, citing the State v. Adubato, 420 N.J. Super. 167, 181 (App. Div. 2011), which held that the officer requesting a motorist to submit to a field sobriety test, although a de facto arrest, does not need probable cause but only a factual basis for articulable reasonable suspicion that the motorist is driving while intoxicated or impaired.
The lesson of this case is that any motorist who admits to having any alcoholic beverages prior to operating a motor vehicle, and has consumed enough to leave traces of it on his breath can be required to perform a roadside field sobriety test to determine whether there is probable cause to arrest the motorist for driving while intoxicated.
Law Office of Vincent J. Sanzone, Jr.
December 22, 2011
Elizabeth, New Jersey
Tel. No. (908) 354-7006
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