Monday, December 14, 2009

"Escorts" and the Domestic Violence Act

J.S. v. J.F., December 10, 2009 - A Discussion
[Full text of the decision here.]

The facts in brief:  The plaintiff worked as a dancer at several clubs where defendant was a patron, and defendant occasionally paid plaintiff to be his paid escort.  They went out on several occasions, including once when the defendant took the plaintiff to his parents' house for Thanksgiving.  After the plaintiff began seeing someone, the defendant began to threaten the plaintiff and her boyfriend with bodily harm and deportation.  The plaintiff obtained a temporary restraining order based on terroristic threats and harassment on December 2, 2008.  Eight days later, after a final hearing, the judge issued a final restraining order.

The issues:  Does the plaintiff qualify as a victim of domestic violence in the context of the parties' relationship, although the defendant paid for her company?

The court's holding:  The New Jersey Domestic Violence Act outlines the state's definition of domestic violence and the parameters under which relief can be granted.  Not anyone can obtain a restraining order against anyone else in the New Jersey Family Court.

[For instance, you can't go to Family Court to get a restraining order against your neighbor or some guy at work, even if he smacked you in the head with a baseball bat.  There is other relief available in the criminal and civil courts for cases like that, but not in family court.]

The protected classes of people under the Domestic Violence Act are spouses, former spouses, and any present or former household member of the defendant, anyone with whom the defendant has a child in common, or anyone with whom the defendant has had a dating relationship.  The Act, however, has not defined the term "dating relationship," and has left it to the courts to make that determination on a case-by-case basis.  The only precedent for the Appellate Division to consider in this matter was a single 2003 case, decided at the trial court level.  The holding of a lower court is not binding on the Appellate Division, but is merely advisory.  In the 2003 case, the judge suggested several factors to consider in determining the existence of a dating relationship:  Minimal social bonding of the parties, above and beyond the casual, how, long the alleged dating relationship existed prior to the acts of domestic violence, the nature and frequency of the parties' interactions, the parties' individual or joint expectations with respect to the relationship, the parties' affirmation to others of their relationship by statement or conduct, and any other reasons unique to the case in question that support or detract from a finding that a "dating relationship" exists.

The Appellate Division declined to use the test outlined in that case, but agreed with the 2003 trial court's reasoning that "the facts should be liberally construed in favor of finding a dating relationship because the Act itself is to be liberally construed in favor of the legislative intent to eradicate domestic violence.  Stated another way, the Act embodies a strong public policy against domestic violence.  Because the Act is remedial in nature, it has been liberally construed for teh protection of victims of domestic violence.  Indeed, the Act itself announces that its purpose is 'to assure the victims of domestic violence the maximum protection from abuse the law can provide.'"  As the Appellate Division stated, "These principles would not be served by a cramped interpretation of what constitutes a dating relationship."

In considering the scope of the Act, the Appellate Division rejected the defendant's contention that a relationship that includes a payment in consideration for the other's time precludes the finding of a dating relationship.

[The court went so far as to say that an au pair or live-in housekeeper would qualify under the Act as a protected class as someone who "is a present or former household member."  Financial benefit from the relationship does not automatically preclude legal benefits under the Act.]

The key consideration is what the particular  parties involved would view as a "date," which can vary from couple to couple, group to group, generation to generation.  No matter what, the courts should be careful to consider the parties' own understanding of their relationship.

Here, the defendant contradicted himself with regard to this issue, asserting that the relationship was merely "professional," while also stating that he gave the plaintiff money to help her out.  He did not object when the judge classified the relationship as "dating."  The plaintiff maintained throughout her testimony that they were boyfriend and girlfriend.

The end result:  The Appellate Division refused to vacate plaintiff's restraining order against defendant.  Plaintiff has a permanent Final Restraining Order.

What does all of this mean to you?  If you are a victim of violence, do not think that recourse is not available to you simply because you are in some semblance of a business relationship with your abuser.  If your situation is akin to the one described here, or if you are an in-home, full-time employee of the abuser or the abuser's family member, you may very well be entitled to a domestic violence restraining order and the protections with which it comes.  Definitely contact the police and/or an attorney for advice and assistance.

Saturday, October 3, 2009

New Law - Immunity for Underage Drinking in Certain Circumstances

New law: The governor’s has signed into law an amendment to NJSA 2C:33-15 that will provide statutory immunity to certain individuals who consume alcoholic beverages while under the legal age to do so.

NJSA 2C:33-15 generally prohibits either the consumption or possession of an alcoholic beverage by a person under the age of 21. The offense is a disorderly persons’ offense and carries a minimum fine of $500. Conviction also requires a six-month suspension of driving privileges when the offense occurs in a motor vehicle.

Under the amendment that goes into effect today, a statutory immunity will apply when:

(1) one of the underage persons called 9-1-1 and reported that another underage person was in need of medical assistance due to alcohol consumption; (2) the underage person who called 9-1-1 and, if applicable, one or two other persons acting in concert with the underage person who called 9-1-1 provided each of their names to the 9-1-1 operator; (3) the underage person was the first person to make the 9-1-1 report; and (4) the underage person and, if applicable, one or two other persons acting in concert with the underage person who made the 9-1-1 call remained on the scene with the person under the legal age in need of medical assistance until assistance arrived and cooperated with medical assistance and law enforcement personnel on the scene. The underage person who received medical assistance also shall [also] be immune from prosecution under NJSA 2C:33-15.The amendment is intended to encourage the intervention of emergency rescue personnel in instances where intoxication has resulted in illness.

What does this mean to you or your child? If you or your child has consumed alcohol while under the age of 21 and is with another person under 21 who has consumed alcohol and requires medical attention, you or your child (and friends) should not fear calling 911 to get help for the sick friend. The person reporting, person who is ill, and any friends who are there with them will be immune from prosecution under this statute if, and only if, they call 911, are the first to report the illness to 911, stay with the sick friend until help arrives, and cooperate with medical personnel and police on the scene.

Thursday, October 1, 2009

Equitable Distribution and Inheritance

Daphne Speck-Bartynski v. Robert Bartynski - A Discussion
[Unpublished Decision of the Appellate Division - Decided September 25, 2009]

The facts in brief: After twenty-two years of marriage and raising two adult children, the parties divorced on July 23, 2008. At the time of the divorce, the husband earned $115,000 per year and the wife was a full-time homemaker.

The parties entered into a settlement agreement, providing for permanent alimony in the amount of slightly more than $30,000 per year. The parties also agreed to the majority of equitable distribution, including valuations on property, custody, parenting time, and child support. Only one issue with regard to equitable distribution remained.

In 1998, the husband received an inheritance, the majority of which was commingled with marital funds. It was used to purchase investment accounts and the parties' summer home. After the complaint for divorce was filed, the wife used a portion of the funds to purchase her post-marital home, an "advance" on equitable distribution according to the settlement agreement. In addition, a portion was lent to the wife's brother, some deposited in a bank account, and $120,000 was used by the wife to pay down the mortgage on the marital home.

The payment of the mortgage spurred the husband to curtail the wife's access to the funds by requiring two signatures on all large withdrawals. He sought to preserve the funds for the parties' children and grandchildren.

The issue before the trial court was the percentage of property allocated to each of the parties. Following a hearing, the court ruled that the fair market value of the summer home, the money used to pay off the marital home mortgage, and the balance of the loan owed by the wife's brother were to be divided equally.

The other assets purchased with the inheritance funds, the two investment accounts, the bank account, and the fair market value of the wife's post-marital home, would be divided with 2/3 going to the husband and 1/3 going to the wife. It is from this portion of the court's decision that the wife appealed.

The issues: Should the assets purchased with the commingled inheritance funds have been divided equally?

The court's holding: The Appellate Division affirmed the trial court's decision.

The general rule is that an inheritance is not subject to equitable distribution. Had the husband kept these funds separate from marital funds, they would have been his alone at the time of divorce. However, because the funds were commingled with marital monies, they do become subject to equitable distribution. That said, the trial court is permitted to allocate some weighted amount of distribution, as it did here.

The trial court has broad discretion regarding the division of marital assets, and its determination cannot be touched by an appellate court as long as the trial court could have reasonably reached its result from the evidence presented. The appellate courts cannot disturb the division just because it is unequal, unless a legal or factual mistake has been made. It is the moving party, in this case the wife, who bears the burden of proving an abuse of discretion.

In this case, the trial judge considered all of the necessary statutory elements with regard to equitable distribution, as well as the evidence, and could have reasonably placed significance on the husband's much larger contribution to marital assets through inheritance, as well as his intention to limit the wife's use of those assets as demonstrated by the change to the signature requirement. There was nothing permitting the Appellate Division to interfere.

The end result: The distribution of assets remained as the trial judge had directed.

What does all of this mean to you? While an inheritance belongs solely to the heir for purposes of equitable distribution, if funds are commingled, they can be distributed between the parties. However, the non-heir party cannot necessarily expect that he or she will receive a full 50% of a commingled inheritance.

Monday, September 21, 2009

Jail Credit

State v. Allen - A discussion
[Unpublished Decision of the Appellate Division - Decided September 18, 2009]

The facts in brief: The defendant pled guilty in Middlesex County to second-degree robbery pursuant to an agreement with the State. He was sentenced to a six-year term of imprisonment, one year less than the sentence the State recommended, subject to the No Early Release Act. Also pursuant to the plea agreement, the sentence was concurrent with a sentence the defendant was already serving in Mercer County, for another second-degree robbery. He was awarded "gap time" credits for the 97-day period between his sentencing in the two counties.

[Gap time is relevant when a defendant, who has been sentenced previously to a term of imprisonment, is sentenced again for a different offense committed prior to the imposition of the earlier sentence. In that circumstance, the defendant is credited at the time of the second sentence for the time of imprisonment served on the prior sentence.]

He was arrested for and confined pursuant to the Mercer County charge between January 20, 2005, and his sentencing in Mercer County on March 10, 2006, and was therefore awarded jail credits for those 415 days as time served on the Mercer County sentence. On January 28, 2005, eight days after he was arrested and confined in Mercer County, he was arrested for the Middlesex County robbery. Because he was already confined on the Mercer County charge, the judge did not award jail credits against the Middlesex County sentence.

Defendant did not appeal from the judgment of conviction, but instead filed a petition for post-conviction relief, claiming entitlement to jail credits against his Middlesex County sentence. The trial judge denied the petition.

The issues: The defendant raised five issues on appeal: (1) Should he have been given jail time credit against his Middlesex County sentence from January 28, 2005, through March 10, 2006, in addition to the 97 days' gap time? (2) Was the sentence imposed illegal? (3) Was the defendant denied effective assistance of counsel, resulting in his guilty plea? (4) Should the PCR (post-conviction relief) Court have conducted an evidentiary hearing to determine the issues raised in defendant's post-conviction relief petition? (5) Is reversal required because of the cumulative effects of the errors during the sentencing hearing and the ineffectiveness of appointed trial counsel?

The court's holding: The arguments raised in Points 2, 4, and 5 lack sufficient merit to warrant discussion. The arguments raised in Point 3 was not raised at the trial level, and therefore cound not be considered on appeal.

The trial court's decision regarding sentencing was affirmed.

The Appellate Division determined that the trial court did not err by declining to exercise discretion and award duplicate jail credits to the Middlesex County sentence that had already been awarded against the Mercer County sentence. Although neither the Criminal Code nor the Court Rules address the propriety of duplicating jail credits in this fashion, jail credits are generally understood to apply only to confinement attributable to the offense that gave rise to the sentence, and impermissible if the confinement is due to the service of a prior-imposed sentence or another charge. Because the defendant's confinement as of January 20, 2005, was attributable to the charge pending in Mercer County, the trial court's refusal to award them against the Middlesex County sentence was consistent with precedent. It also did not deprive the defendant of the benefit of his plea agreement, which was for concurrent sentencing, not sentences that would end on the same date.

The end result: The defendant had to serve his sentences as set forth by the trial judges in Mercer and Middlesex Counties, with the sentences running concurrently but the Middlesex County sentence ending at a later date than that in Mercer County.

What does all of this mean to you: If you are already in jail pending trial on two separate charges at the same time, pursuant to two separate offenses, your "time served" jail credits can only be awarded against one of the sentences, the one pertaining to the offense for which you were actually being held in custody.

Saturday, September 19, 2009

Appellate Review, Business Ownership, and Support

Catherine Romania v. Nicholas Mattera - A Discussion

[Unpublished Decision of the Appellate Division - Decided September 4, 2009]

The facts in brief: After 17 years of marriage, Romania filed a complaint for divorce on May 10, 1999. The parties had five children, aged fourteen, eleven, nine, seven, and four at the time the complaint was filed.

The divorce was contentious, including domestic violence complaints, municipal court complaints for interference with custody and harassment, and claims of malicious prosecution. The parties retained a psychologist and psychiatrist to assist in determining the best custody and visitation arrangement for the children, one of whom described the children's situation as living in a "war zone."

The trial regarding financial issues ancillary to the divorce was conducted separately after a failed attempt at mediation.

Both parties were attorneys. After the children were born, Romania became a partner in Mattera’s firm, later leaving to work part-time in another firm for an hourly wage. Mattera continued to run his own law firm. He did not keep the finances separate, instead paying household bills and expenses directly from the firm’s account and intermingling the funds.

The firm’s income fluctuated throughout the years. Romania retained two experts to determine the actual disposable income from the business for the purpose of evaluating alimony and child support, and Mattera one.

The parties stipulated to the value of the marital home and that Romania’s share of Mattera’s $1.8 million dollar law firm was $627,000. The parties also had several investment accounts.

The trial court ordered that Mattera pay permanent alimony, child support for the five children, health insurance for the children, and two thirds of the college expenses. The court also ordered an equal division of assets, subject to several debits and credits. One such credit was to Romania for one half of $330,000, the sum withdrawn by Mattera from his profit-sharing account. Mattera was not granted credit for funds Romania withdrew from accounts which was used to pay for major repairs on the marital residence and litigation expenses. The trial court explained that it considered Mattera’s share of those withdrawals to be Mattera’s contributio to Romania’s litigation expenses, in effect ordering that Mattera pay some of Romania’s counsel fees. It also acknowledged that the funds used to repair the residence increased its value, thereby increasing the amount Mattera and Romania would both receive with regard to equitable distribution. The court also directed additional credits for Romania, including one half of the tax she paid on joint assets for several years and one half of Mattera’s vehicle. A credit was given to Mattera to reimburse him the full payment he made to an escrow account. Both parties were denied other requested credits.

The court also determined custody and visitation.

The issues: Was the court biased, having an impact on it’s discretionary determinations regarding custody and parenting time, alimony, child support, and equitable distribution?

The court's holding: Affirmed in part, and remanded for reconsideration of alimony, child support, and college expenses.

The trial court had expressed concern that the children were being damaged by the actions and hostility of both parties, simply reflecting the observations of all the professionals involved in the custody recommendations and determination. Beyond that, the judge was obligated to, and did, make findings of credibility.

Because the judgment of the trial court concerning custody and parenting time was based on findings of fact adequately supported by the credible evidence, and because the review of the Appellate Division is limited to solely determining whether the findings of fact could reasonably have been reached based on that evidence, it could not alter the judgment. The Appellate Division is forbidden from undertaking an independent analysis of the trial court record or making it’s own credibility findings.

The standard for appellate review of a trial judge’s determinations regarding equitable distribution is one of “abuse of discretion.” The Appellate Division cannot “disturb decisions that have reasonable support in the record as a whole and are consistent with the law.” The question is whether the “division is clearly unfair or unjustly distorted by a misconception of law or findings of fact that are contrary to the evidence.” The Appellate Division cannot, in essence, hold a new trial, and so the decision will be affirmed even if the court would not have made the same division of assets as the trial judge.

The denial of additional credits to Mattera was not an abuse of discretion resulting in an unfair division of assets, according to the Appellate Division, given the financial circumstances of the parties and the likelihood that Romania would have been awarded pretrial counsel fees.

It was also not an abuse of discretion when the trial court refused to award Romania interest on her share of Mattera’s law practice, since during that same period of time, she has use of the marital residence and significant assets, a portion of which were later awarded to Mattera. The use of those assets were used in lieu of the interest she demanded.

The standard used by the Appellate Division to review alimony and child support awards is also “abuse of discretion.” If the decision has reasonable support in the record, the Appellate Division cannot touch it.

The Appellate Division found that the trial court’s determination that Mattera’s net income approximated $778,000 per year had no support in the record. The trial court relied upon the testimony of Mattera’s accountant, who assumed unreasonably and contrary to the history of the firm’s finances, that the law firm’s receipts and expenses would remain constant throughout the year. The Appellate Division also found that the evidence would permit a finding of net business revenue higher than that reported, but that business revenue cannot be equated with net income available to Mattera. The Appellate Division therefore found that both support orders were based upon a mistaken foundation, requiring remand to the trial court for an additional determination.

The end result: The Appellate Division upheld most of the judgment of the trial court, and so equitable distribution and custody were not altered. The issues that were determined by Mattera’s disposable income, those of child support, alimony, and college payments, were sent back to the trial court for a new trial.

What does all of this mean to you? Although you may not be happy with the trial court determinations regarding your divorce, the Appellate Division is very limited in its ability to make changes. The higher courts cannot re-try your case, or make credibility determinations, they can only determine whether, under the standards dictated by the specific issue in question, the trial court made such a large error that the decision must be overturned.

In addition, if you or your spouse owns a business, even when the business and personal funds and expenses are intermingled, the income of the business is not equivalent to the income of the person, and cannot be used outright for determination of support amounts.

Thursday, September 3, 2009

Equitable Distribution and Child Support

Nancy M. Hreha-Coloccia v. Leonard Coloccia - A Discussion
[Unpublished Decision of the Appellate Division - Decided September 2, 2009]

The facts in brief: After twenty years of marriage, the parties were divorced on March 3, 2008. Two daughters were born of the marriage, aged 18 and 20 as of the date of the Appellate Division's opinion.

Before the parties were married, the husband owned a house in Clifton, that he bought while the parties were dating. He put down a deposit of $60,000 to $80,000, with no financial contribution from the wife. The parties lived in that house from their marriage in October of 1987, until 1999, when they sold the house to purchase a home for $206,000 in Branchville, NJ.

Shortly after the parties were married, the wife discovered that the husband owed $10,000 to the IRS. She paid part of this debt from settlement proceeds from a car accident. Later, in 2003, the husband failed to report a withdrawal from his IRA on his tax returns, causing another tax liability, which was then paid from joint funds. In 2005 and 2006, the wife filed separate income tax returns; the husband did not file tax returns.

At some point during the marriage, a TV satellite company damaged the roof of the marital home, resulting in a $3,800 settlement to the parties. When the husband's support obligation had not yet commenced, the wife used $200 of those funds to make other repairs to the house and the balance to pay the mortgage, taxes, and shelter expenses for herself and the parties' daughters in September of 2005.

From August 2007 to February 2008, the older daughter lived with the husband.

After trial, the judge required both parties to file joint state and federal income tax returns for the years 2005 - 2007. In addition, he set the husband's child support arrears at $3,793.67, but gave the husband credit of $910 for the months when the older daughter resided with him, $1,800 for his 50% interest in the settlement with the TV satellite company, and $1,000 for the husband's 50% interest in two joint bank accounts, reducing the amount of arrears to $83.67.

The issues: Was the judge's ruling with respect to equitable distribution of the marital home, awarding her 45% of the equity, plain error? Did the judge improperly reduce the child support arrears due from the husband pursuant to a pendente lite order? Could the court compel the parties to file joint tax returns for 2007 and amended joint tax returns for 2005 and 2006, or was this plain error?

The court's holding: Affirmed in part and reversed in part.

The judge's ruling with regard to the equitable distribution of the marital home should not be disturbed. The standard of plain error requires that the trial judge's decision remain undisturbed if there is sufficient credible evidence on the record to support it. Property allocation, specifically, is reviewed under an abuse of discretion standard, requiring a finding that the decision was made without rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.

Here, because the husband used substantial premarital assets to purchase the Clifton home, and the proceeds from the sale of the Clifton home were used to purchase the Branchville home, although it was nine years before the parties were divorced, it was reasonable for the trial court to award her a smaller portion of the equity in the home than the husband, where she made no financial contribution to the purchase of the Clifton home.

The judge partially improperly reduced the husband's obligation for child support arrears. Because the New Jersey statutes prohibit the retroactive modification of child support obligations, the $910 credit for the period of time the parties' older daughter lived with the father was impermissible. The other two credits were permissible as payments from the husband's assets toward his child support obligation.

It was plain error for the court to order the filing of joint tax returns, in light of the husband's history of underestimating his income to the IRS, and the fact that the wife had already filed tax returns for those years, it would be unfair to force the wife to risk exposure to another tax liability because of the husband's failure to file and pay.

The end result: The wife received 45% of the equity in the marital home as equitable distribution of that asset. The husband's child support arrears obligation was adjusted to $993.67. The wife was permitted to file her own separate 2007 tax return and to refrain from filing amended joint tax returns for 2005 and 2006.

What does all of this mean to you? If you contribute the entirety, or possibly even large majority, of the funds to purchase the marital home, it is likely that you can and will receive a partial credit for those funds during equitable distribution.

If you are obligated to pay child support, but the custody arrangement alters and your child or children reside, even temporarily, primarily with you, you should file an application in court to amend the child support order. Should you wait, the child support obligation cannot be amended retroactively, and you will still be obligated to pay the full amount of support despite the change in residence.

Although the court will often order parties to file joint tax returns to maximize their potential refund or minimize their potential tax liability, the court will not force you to risk a greater liability due to the wrongdoing of your spouse, if proof exists.

Saturday, August 29, 2009

Mandatory Joinder

State of New Jersey v. Louis E. Veney, Jr. - A Discussion

The facts in brief: The defendant was arrested after an officer observed a "marijuana blunt" in his vehicle's console and the defendant told him there was a weapon in the car.

The grand jury indicted the defendant for third-degree "unlawful possession of a weapon" (Count 1), fourth-degree "hindering apprehension" (Count 2), second-degree "certain persons not to have a weapon" (Count 3). The state also charged defendant under separate complaint-summons with disorderly persons offenses of possession of marijuana and possession of drug paraphernalia, and with two traffic offenses, operating a vehicle with a suspended drivers license and operating a motor vehicle while in possession of a controlled dangerous substance.

Prior to trial, the State moved to dismiss Counts 1 and 2 of the indictment, with no objection from the defendant. This confirmed a letter previously sent to defense counsel indicating the State's intention to dismiss those counts. The court indicated an intention to dismiss the two counts after the jury was impaneled and sworn. After the jury was sworn, the State did not move again to dismiss the counts, but the trial proceeded only on Count 3 with regard to this defendant.

The jury found defendant guilty of Count 3, "certain persons not to have a weapon." The judge granted defendant’s motion of acquittal notwithstanding the verdict. At the same hearing, the defendant pled guilty, upon the advice of his attorney and pursuant to a plea agreement, to Count 1 in exchange for state recommending 4 years prison with 18 month period of parole ineligibility, dismissal of Count 2 and dismissal of the disorderly persons and traffic offenses.

The court sentenced the defendant according to the plea agreement.

The issues: Was the defendant denied effective assistance of counsel? Was the State precluded from seeking the defendant's conviction on Count 1 of the indictment pursuant to the bar against double jeopardy? Was the State precluded from seeking the defendant's conviction on Count 1 of the indictment pursuant to the mandatory joinder rule?

The court's holding: The state was barred from prosecuting the charge of unlawful possession of a weapon under the mandatory joinder rule, as well as the doctrine of fundamental fairness. The defense attorney should have sought dismissal of the charge prior to defendant's plea, the state previously having tried defendant to conclusion on another charge arising from the same core set of facts giving rise to this charge.

The Appellate Division determined that the Constitution's prohibition against double jeopardy was irrelevant, as jeopardy had not attached when the motion for Counts 1 and 2 of the indictment was made, as the jury had not yet been impaneled and sworn. Therefore, the State would have been within its rights to try the defendant on those separate charges.

However, the mandatory joinder rule precluded such a subsequent trial. That rule was adopted to bar separate trials for multiple offenses that are known to the prosecuting attorney at the time the first trial begins, when the offenses are based essentially on the same conduct or arise from the same criminal episode and are within the jurisdiction and venue of a single court. This rule is more widely applicable than that barring double jeopardy.

[Note: The court may still order a separate trial for multiple charges when it believes the occasion warrants it due to potential prejudice to either the defendant or the State.]

In this case, the State could not have proceeded to trial on Counts 1 and 2 of the indictment after the dismissal of Count 3 by the court. Therefore, by negotiating the plea agreement with defendant, the State had indirectly accomplished what the mandatory joinder rule prohibits. The defendant was "entitled to be free of the harassment and oppression of a second trial on offenses relating to the same episode."

The Appellate Division further concluded that even had the mandatory joinder rule been inapplicable in this case, the State should have been barred from proceeding on Count 1 by the doctrine of fundamental fairness.

In considering the fairness to defendant, the court examined his reasonable expectations. The letter to defense counsel, followed by the statements made in court describing the State's intention to dismiss Counts 1 and 2 and proceed only on Count 3 with regard to this defendant would lead the defendant to believe that, in proceeding to trial on Count 3, he would not have to face subsequent prosecution on Count 1. Further prosecution would violate the spirit of the mandatory joinder rule and the doctrine of fundamental fairness.

In addition, the court concluded that defendant was denied effective assistance of counsel, as his attorney should have moved to dismiss Counts 1 and 2 prior to the entry of a guilty plea by defendant.

The end result: The conviction of the defendant was reversed and the indictment dismissed by the Appellate Division.

What does all of this mean to you? The Appellate Division has reiterated the protection afforded to defendants from multiple trials stemming from the same instance of criminal conduct. Except in instances where the court orders separate trials for separate counts of an indictment, you will be subjected to only one trial, freeing you from the additional stress and expense of facing additional trials at a later date regarding the same indictment.

Thursday, August 20, 2009

Miranda Rights and Juveniles

State of New Jersey in the Interest of A.S., August 12, 2009 - A Discussion

The facts in brief: A 14-year-old girl, A.S. was accused of molesting the 4-year-old grandson of her adoptive mother. Had she been an adult, the acts described would have constituted first-degree aggravated sexual assault. A.S. had been abandoned by her substance-abusing biological mother at the age of nine, and began living with her adoptive mother when she was eleven. She was reading at a third-grade level although she was in high school. She had no prior experience with the police, courts, or legal system.
After a detective with the county prosecutor's office interviewed the victim, A.S. appeared for questioning with her adoptive mother, at which time A.S. confessed to the acts alleged. At trial, the Family Court judge conducted a suppression hearing to determine the admissibility of this confession.
From the tape of the interview as well as A.S. testimony during the suppression hearing, the judge learned that the prosecutor had directed A.S.' mother to read to A.S. her Miranda warnings. When A.S. asked what a lawyer would do for her, her mother responded simply, "Suppose to represent you," and then told A.S. that she'd have to talk eventually and that they already knew what she'd done. A.S.' mother, without obtaining the juvenile's consent, told the prosecutor that he could question her. It was only then that A.S. signed the waiver.
When A.S. again asked what an attorney would do on her behalf, her mother and the prosecutor told her that he would represent her and ensure that her rights were not violated, but could not speak for her. She was told by her mother, "When the questions are asked, you have to answer the question" and by the prosecutor, "... you're the only one that can actually speak the truth here." A.S. was not asked again whether she would like to have an attorney; instead, her mother expressed impatience at the delay A.S. was creating and the prosecutor told A.S., "the truth is only gonna help you," and that "an attorney that's an assistant prosecutor was gonna review all this information," and "the more truthful you are and the more complete you are, okay, the better it looks for you, okay."
The two adults proceeded to question her until she confessed to the acts alleged. Throughout, the antagonism of her mother toward A.S. was clear as she repeatedly insisted that A.S. confess to the prosecutor.
During the hearing, A.S. stated that she understood "some of" her rights, and that when she refused to answer questions, she was intending to invoke her right to "remain silent," until she was badgered into responding. She also stated that she never asked for an attorney because they didn't do anything but just "sit there." The judge determined that the confession was indeed admissible, if troubling.

The issues: Was A.S.' waiver of her right to counsel and right to remain silent under Miranda v. Arizona given knowingly and voluntarily? Did A.S. invoke her right to remain silent?

The court's holding: The Appellate Division determined that the confession, in fact, should not have been admitted into evidence.
In the case of a juvenile, the standards regarding the waiver of Miranda rights are exacting.
As the court discussed, "To admit the confession of a juvenile over the age of fourteen, the State must demonstrate, beyond a reasonable doubt, that the statement was knowingly, intelligently, and voluntarily given," based upon factors including the suspect's age, education, intelligence, advice as to constitutional rights, repetition and length of questioning, and the suspect's prior encounters with the law. When a juvenile is being interrogated, the role of a parent takes on a special significance. The parent’s role is to support the juvenile and guide her, not to be an additional adversary in an unfamiliar and intimidating setting. The court emphasized the necessity for adult protection with a juvenile suspect.
With regard to A.S. specifically, nothing was done to contribute to her comprehension of her rights, discuss whether waiver was an appropriate course for her to take, or explain to her what the practical effects of a waiver would be.
In addition, A.S.’ long silences suggested that she was indeed attempting to invoke her right to silence, requiring further inquiry from the prosecutor with regard to A.S. wishes, rather than further interrogation. The courts have held that a request by a defendant to terminate an interrogation must be scrupulously honored, no matter how ambiguous, even when the person being questioned is an adult. This requirement imposed by the courts upon prosecutors is all the more important when the suspect is a juvenile.
Most troubling to the court was the evident conflict of interest resulting from A.S.’ mother’s relationship to the victim and her actions in the best interests of her grandson, to the detriment of her adopted daughter. The purpose of a parent’s presence at the interrogation of a juvenile is to provide a buffer between law enforcement and the child. No such buffer was created here.
The facts of this case, reviewed as a whole, rendered A.S.’ confession substantially unfair. The court found that, “In circumstances such as those existing in the present matter, where the adult advisor is known to have a close family relationship to the victim and the alleged perpetrator, the prudent approach would be to require the presence of an attorney capable of advising the juvenile with respect to her rights and her potential culpability.”

The end result: In the end, the Appellate Division did uphold the adjudication of the Family Court. It had no choice, though it was gravely disturbed by the way the confession was handled and the findings of the Family Court judge with regard to its admissibility. The Family Court judge had indicated at trial that even without the confession he would have come to the same findings. It is the job of the Family Court judge to determine credibility, and he found the victim had given enough credible testimony to result in adjudication of A.S. as a delinquent and her registration with Megan's Law. It was not the place of the Appellate Division to dispute those findings.

What does all of this mean to you and your child?: The court has reiterated the great importance of protecting the rights of all defendants, but especially those of juveniles.

Certainly, if you have a conflict of interest with regard to a child in your care who has been arrested, it would be in the best interests of all concerned for you to obtain representation for the child to preserve his or her rights before any questioning begins. Failing to do so would merely drag out the process, harming the victim, harming the juvenile defendant, and increasing the expense.

If, as in most cases, you do not have a conflict of interest and are truly interested in protecting your child, do not allow him or her to be questioned without legal representation. If you cannot afford it, know that a public defender must be appointed on his or her behalf. Even if you can afford it, if there is no time given to you to to obtain private representation prior to initial questioning, a public defender must be assigned to protect your child. If you can obtain private representation, do so.

Prosecutors and police officers will always do all that is in their power to convince their suspect to waive his or her rights to counsel and silence and to confess; juveniles are treated no differently than adults in this. While they are not permitted to trample the rights of you or of your child, they will always, always tell you that it is in your child's best interest to talk, that the child would be helping himself and that they are there to help.

It is when they convince you of this, when you agree to permit your child to talk to the police or prosecutor unrepresented, that the defense attorney eventually retained to represent your child has the most difficult job ahead. It decreases the likelihood that your attorney can help, it decreases the likelihood that you will see a positive outcome to your child's case, and it increases the danger that your child will be adjudicated a delinquent and face the most severe types of punishment.

Thursday, August 13, 2009

Oh, really?

According to a recent article in the New York Daily news (Original Source Here), not only do 70% of Americans think that it is right for a woman to take her husband's name upon marriage, but a full fifty percent actually think it should be required by law. Of the ones who favor the name change, some of them voiced the reasoning "that women should lose their own identity when they marry and become a part of the man and his family."


Now, I recognize that only 815 people were surveyed. I also recognize that statistical data can easily be manipulated by those asking the questions, and that we have no indication that this was an accurate cross-section of all Americans. Still, the statistic is disturbing.

For the sake of perspective, I was married in March and I changed my name from Pelc to Symbouras. However, I knew that I had the choice, and that the choice was mine alone. My husband never even brought up the issue; I did, and his reaction was, "I'm happy that you want to take my name, but it's entirely up to you. I'd never push it." It is for this reason, this recognition of choice above all, that I absolutely did not lose my identity.

As someone who was planning a wedding, I frequented wedding-related websites and was in contact with other women across the country and around the world who were also getting married. Every once in a while the question would be posed regarding a marital name change, and the responses were interesting. Many women, especially in New Jersey, are choosing to keep their premarital surnames. Many are changing them entirely as I did, hyphenating them, or dropping their middle names, bumping their maiden name to middle name status. Many, to my surprise, relayed their fiance's insistence that they change their names. Raised, as I was, to be independent and fairly opinionated, that surprised me. It grates on me.

This is 2009, after all. Women are, in the legal world, equals. Sure, there's still much more to gain in the real world, but our predecessors have fought long and hard for our equality and to a large extent have achieved it. Born in 1970, I was raised with the perspective that I could do anything I pleased with my life; that there was nothing I could not achieve, no career I could not pursue. We vote. We serve on juries. We seek educations. We run companies. We create, invent, achieve.

And still... we need to lose our own identities? No. No, we don't.
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