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
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
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Friday, April 20, 2012
Attacking and/or Neutralizing the State’s Intent to Distribute Expert
Because of the more severe
jail exposure that a defendant faces when convicted for distribution or intent
to distribute as opposed to simple possession, it is extremely important that any
person found to possess CDS for personal use, but charged with intent to
distribute, that they retain a New Jersey criminal defense attorney that has
the experience in vigorously defending people charged with these types of
crimes.
In almost every controlled
dangerous substance case in New Jersey in which the defendant has a quantity (usually 10 dime
bag, packages or vials) of drugs, individually packaged, the State will charge
the defendant with possession with intent to distribute. This is true when there is absolutely no
evidence that the defendant possessed the narcotics with intent to distribute
other than the testimony of an expert witness for the State. These “experts” usually are county detective,
who will testify as an “expert witness” in any given case. In essence, they will give an opinion, based
on a hypothetical fact pattern, which follows the defendant’s facts, that this
“hypothetical defendant”, possessed the drugs with intent to distribute. Ultimately, the prosecutor is allowed to ask
the question as to whether the drugs were possessed for distribution or
personal consumption. Under no
circumstances can the expert give an ultimate opinion as to the guilt or
innocence of the accused, or use his name in the hypothetical.
Sounds confusing? Don’t feel bad, because it seems from the
case law, the rulings of the trial judges with this issue, different ideas from
prosecutors and defense attorneys; nobody seems to know what the law really
means, and how it should be applied. The
problem is, that these so called “State experts”, are usually the lynch pin in
intent cases, and juries are very persuaded with such testimony, and
accordingly, many defendants whom are drug addicts and possess drugs as user
are being convicted as sellers.
The question that defense
attorneys face is how to challenge these experts. In practicing criminal defense for 22 years
it is one of the hardest tasks that a defense attorney has in a drug case
because the juries do not understand the difference between the hypothetical
person used in the hypothetical question, and the defendant seated at the
defense counsel.
The typical hypothetical
question (as asked in State v. Reed, 197 N.J. 280 (2009), is:
Q.
[Prosecutor]: Assume hypothetically that three individuals are driving in a borrowed
vehicle. Let’s call the driver S-1, suspect one. Front passenger, suspect two.
And assume there is a rear passenger behind the front passenger which we'll
call suspect three, S-3.A. [Detective]: Okay.
Q. And they’re traveling from New York City on Route 95 so that you know that they're coming out of New York. And the individuals are traveling in the vehicle at night, approximately a little before 9 p.m. on a weeknight. They’re driving in an erratic fashion, pulled over. The front passenger and the rear passenger, back passenger at some point are asked their names and they give false names. An officer who asks the front passenger for their paper work smells marijuana in the vehicle and notices in the vehicle an open container of beer.
After that, later found in the vehicle, in the front passenger section, right between—on the floor in front of the seat but where their feet would be are found loose folds of what’s determined to be heroin and also scattered on the floor are— by the feet of the front passenger are six bags of marijuana and underneath the seat are found fifteen bricks of heroin, determined to be heroin, as well as found additionally is a sixteenth brick. That sixteenth brick had been opened so that there were forty bags and seven or eight various loose folds.
On the back passenger assume is found cigars or brown cigarettes, Phillies. And on the persons of the individuals are found a totality of currency of nine hundred fourteen dollars.
A. Okay.
Q. Assuming all those hypothetical facts, do you have an opinion as to why the drugs, specifically the heroin, totaling several hundred bags or folds, would be possessed?
A. My opinion they would be possessed with the intent to distribute.
Q. And would that opinion be as to suspects one, two and three?
A. All constructive possession with the intent to distribute.
New Jersey Evidence Rule 702 permits the admissibility of expert testimony, “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.”
This rule only allows the expert to testify as to specialized knowledge and not has to his personal opinion as to any fact or issue that the jury can readily determine without an expert. Thus, if the expert gives an opinion as to a hand transaction, exchange of money, or other facts which one does not need to be an expert to understand, the opinion must be excluded.
Therefore, the prosecutor has the burden of proving three elements before the expert will be allowed to testify.
1. The intended testimony concerns a subject matter beyond the ken of an average juror;
2. The field is at a state of the art such that
an expert’s testimony would be reliable; and
3. The witness has expertise sufficient to offer
the intended testimony.
Defense counsel
must be very alert as to how the hypothetical question is formulated and the
facts in the hypothetical can only be facts adduced at trial. Of course if an important piece of evidence
or fact which is favorable to the defense was left out, that fact can be
pointed out in cross-examination, such as the tolerance of this defendant to
drugs, etc.Example. “Now this hypothetical person that you are talking about, the amount of cocaine found on his person’s would not be a lot for a person with a day habit of 42 bags of heroin a day.”
Example. “Every junkie or user of illegal drugs have different levels of tolerance.
Example. “Some have very high tolerance.”
Example. “What were the markings on the package?”
Accordingly, the hypothetical question must concern itself with: (1) the manner of packaging and processing for use or distribution, (2) the significance of various quantities and concentrations of narcotics, (2) the roles of various drug paraphernalia, (3) characteristics of the drugs themselves, (4) the import of circumstances surrounding possession, (5) the conduct of the possessor and the manner in which drugs may be secreted or otherwise possessed for personal use or [distribution].
State v. Reed, 197 N.J. 280 (2009) a conviction was reserved
because the drug expert testified that everyone in the vehicle possessed the
narcotics with intent to distribute.
Clearly, that was improper because it was beyond the scope of the
expert’s knowledge. How could he or she
know that fact, without guessing?
Whether someone is in constructive possession of CDS is for the jury to
decide.
Recently, another intent
to distribute case was reversed in State v. Ronald L. Jones, Jr.,
(Appellate Division, decided April 17, 2012). In that
case the expert used the defendant’s name in the hypothetical, as well as
talked about other drugs on his person’s which were not charged.
In State v. McLean,
205 N.J. 438, 461-63 (2011) a drug conviction was reversed when the arresting
officer testifying that when he witnessed a hand-to-hand transaction in which
the defendant was involved in that it was his opinion that the defendant was
engaged in a hand-to-hand drug transaction.
Also, in State v.
Baskerville, 324 N.J. Super. 245, 256-57 (App. Div. 1999), testimony that
the officer saw an exchange of money for small item, which the officer believed to be a drug transaction was likewise
found to be improper, because it invaded the province of the jury to decide
what the transaction was, and not the officer.
Law Office of Vincent J.
Sanzone, Jr.
April 20, 2012
Elizabeth, New
Jersey
Tel. No. (908)
354-7006
Elizabeth Criminal Defense
Attorney, Union County Criminal Defense Lawyers, Newark Criminal Defense
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Thursday, April 12, 2012
The Real Villain in the Slaying of Trayvon Martin
The hoopla has started and the people are taking sides as to whether George Zimmerman is a killer or proud defender of Florida’s stand your ground law, and therefore, acted in self-defense, as this crazy law apparently allows.
The real villains, however, is the crazy Florida politicians and right-wing gun fanatics who have been bought and sold by the National Rifle Associations and their money lobbyist the gun manufactures.
Because of this insane law in Florida, (and other states), Mr. Zimmerman was allowed to walk around in his gated community playing cop, with a concealed firearm which he was not properly trained to use. It was a tragedy waiting to explode. It is hard enough for us to keep our supposedly trained law enforcement officers from killing innocent people let alone a small frail untrained civilian, with no back-up.
There is no doubt that in the course of this trial it will be alleged by Mr. Zimmerman, and maybe rightfully so, that after he confronted Trayvon Martin as to why he was walking in his patrolled area, he was brutally attacked by Trayvon. I would further assume that he will further testify that while the two struggled, Trayvon was the aggressor, and in fact was the better fighter, and attempted to take Mr. Zimmerman’s weapon during the struggle. Under normal circumstances, if Mr. Zimmerman was not armed with a handgun, Mr. Zimmerman would have received the short end of that encounter. These types of confrontations occur, unfortunately, thousands of time a day in the United States. But what changed this equation was that Mr. Zimmerman was armed with a deadly weapon, and he used it. The fact remains that he should not have been allowed to carry a concealed handgun, especially while playing neighborhood cop.
In the final analysis I am convinced that Mr. Zimmerman will be acquitted of the most serious charge, and if anything, be convicted of a lesser charge which will require no or little jail time. Florida and other states which allow these types of laws are the villains, and it is time that they stop marching to the beat of their money friends (NRA and gun lobby) who keep them elected.
All human life is scared and certainly Trayvon’s is no exception. Maybe Trayvon’s death and the trial of Mr. Zimmerman will become more than entertainment and a sideshow for the American people and the medial, but rather a real call by the people and media to change the law which gave rise to Trayvon’s death.
“If you want peace work for Justice.” Pope John Paul, I
Law Office of Vincent J. Sanzone, Jr.
April 12, 2012
Elizabeth, New Jersey
Tel. No. (908) 354-7006
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Wednesday, April 4, 2012
New Jersey Law Has Not Changed Because of the United States Supreme Court Case, Florence v. Chosen Board of Freeholders.
Whether to strip search a detainee in New Jersey is guided by N.J.S.A. 2A:161A-1, which has been promulgated by the Attorney General’s Guidelines under the title, “Strip Search and Body Cavity Search Requirements and Procedures for Police Officers.” See, http://www.state.nj.us/lps/dcj/agguide/stripout.htm
Under New Jersey Law, notwithstanding the Florence decision it is still illegal for a police officer without consent of the individual, or a judicial warrant to conduct a strip search or body cavity search on unless the commanding officer has reasonable suspicion to believe that the person is concealing a weapon, contraband or controlled dangerous substance.
Therefore, the Florence case decided by the United States Supreme Court should not raise fear of New Jersey residences and visitors since New Jersey affords its residences and visitors’ greater protections under state law than federal law.
If Mr. Florence arrested in New Jersey had made a claim under New Jersey state law instead of federal law his claims against the jailers who required him to strip search would have survived summary judgment, and that claim would have been decided by a jury.
Law Office of Vincent J. Sanzone, Jr.
277 North Broad Street
P.O. Box 261
Elizabeth, N.J. 07207
Tel. No. (908) 354-7006
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Monday, March 26, 2012
The American Legislative Exchange Council (ALEC) and Florida’s “Stand Your Ground” Law; a Front for the Right-Wing Corporate Oligarchy.
The American Legislative Exchange Council (ALEC), advertises itself on its website, (ALEC.org.) as an organization that believes in “Limited Government, Free Markets and Federalism.” However, in truth it is right wing lobbying group controlled by right wing Oligarchs and Corporations such as the Koch brothers, Corrections Corporation of America (“CCA”),[1] National Rife Association, Exxon Mobile, American Bail Coalition (association of bail bondsman) and others. This organization has been running around the country giving fully written bills to state legislators which for the most part have been enacted verbatim. These laws paddled by ALEC have all the same goal, support the National Rifle Association to increase the number of people carrying deadly firearms, and to privatize the prison system to fatten the coffers and stockholders of Corrections Corporation of American the biggest private prison system in the United States, and the world and growing.
One of ALEC’s obscene laws which was enacted by lazy Florida legislators was “Stand Your Ground” law which has allowed, as many believe including this author, the unjustified slaying of the young African-American child, Trayvon Martin. The law is obscene because in reality it allows someone to stalk you, start a fight, and than shoots you in cold blood, if among other things you attempt to confront the person who is stalking you, and that the person that was stalking you now feels threatened by you. Even more disturbing is that the person that stalked and killed you can claim that they acted in self-defense and the dead victim’s side of the story dies with the dead victim. Clearly, this law has no sound basis in law or logic and has no place in American jurisprudence. The correct version which has been around for hundreds of years under common law that everyone has the duty to retreat before they use deadly force except when trapped, in one’s dwelling, or in the defense of another.
There is no question that ALEC is a front for the wealthy powerful oligarchs in this country with its power and money are interested in
In response to the New York Times op-ed article written by the Noble Prize winner for economics, and the renown Princeton University Professor, Paul Krugman, ALEC on their website disputes that its template was the model for Florida’s law. “Florida’s Stand Your Ground” law was the basis for American Legislative Exchange Council’s model legislation.” Whether that is true or not really misses the issue. The real issue is whether ALEC through its powerful benefactors are passing laws which support right-wing special interest groups which have no concern for justice and equality? The answer to that question unfortunately is that ALEC is only interested in promoting the privatizing businesses for its friends such as CCA.
After all keeping people in prison for a long time is good business for ALEC and CCA.
“If you want peace work for Justice.” Pope John Paul, I
Law Office of Vincent J. Sanzone, Jr., Esq.
March 26, 2012
(908) 354-7006
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[1] CCA on its website brags that it manages in the United States approximately 75,000 inmates in more than 60 facilities under contract for management in 19 states and the District of Columbia.
Tuesday, February 7, 2012
City of Bayonne Settles Another Police Brutality Case: Internal Affairs and Police Accountability by Department Supervisors Non-Existent
A federal civil rights law suit, Condo v. City of Bayonne, against the city was recently settled for the sum of $95,000.00.
The allegations as contained in the complaint assert that two Bayonne police officers engaged in the wonton beating of plaintiffs Condo and DeRocco, by repeatedly kicking and punching them after they came out of a bar in Bayonne. It is alleged that other officers seeing the brutality failed to intervene.
The plaintiffs alleged that their civil rights were violated under federal civil rights laws pursuant to 42 U.S.C. § 1983. As a result of the beating both plaintiffs’ sustained serious injuries which required medical attention at the local hospital.
Although both plaintiffs were also falsely charged with aggravated assault and resisting arrest against the arresting police officers, all charges against Condo and DeRocco were administratively dismissed by the Hudson County Prosecutor’s Office. Named in the lawsuit along with the city police department were police officers, Dominick Lillo, William Peterson, Timothy Carey and Timothy McAuliffe.
This type of abuse will continue in Bayonne by the police department until such time as the department takes serious citizen complaints and engages in honest internal affairs investigations of its officers; and when appropriate the disciplining of errant officers.
Update: February 20, 2015, Dominick Lillo arrested by the FBI and charged by the United States Attorney's Office for excessive force in the beating of another Bayonne citizen arrested for outstanding municipal warrant. He was also charged with lying to federal agents. The Chief of Police, Richard Kubert, knew about this errant officers for years, and did nothing. Mr. Kubert should be fired immediately, if the department wants to regain any integrity.
Update: February 20, 2015, Dominick Lillo arrested by the FBI and charged by the United States Attorney's Office for excessive force in the beating of another Bayonne citizen arrested for outstanding municipal warrant. He was also charged with lying to federal agents. The Chief of Police, Richard Kubert, knew about this errant officers for years, and did nothing. Mr. Kubert should be fired immediately, if the department wants to regain any integrity.
Law Office of Vincent J. Sanzone, Jr.
277 North Broad Street
P.O. Box 261
Elizabeth, N.J. 07207
(908) 354-7006
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