NJ Supreme Court Rules PTI Not an Option After Trial

As reported by the the New Jersey Law Journal, New Jersey’s pretrial intervention (commonly known as PTI), designed to divert less serious criminal cases from prosecution, is not available after charges have been tried and guilty verdicts are returned, the state Supreme Court ruled on Tuesday.

PTI is not now and never has been a sentencing alternative, and admitting an otherwise deserving defendant after a verdict frustrates the goals of early diversion, early rehabilitation and avoidance of the stigma of a criminal conviction, the justices said in State v. Bell.

They agreed with an appeals court that found a trial judge erred in allowing Sean Bell to enter the program after a charge of second-degree aggravated assault, which would have precluded his admission, was dismissed but also after a jury found him guilty of third-degree aggravated assault.

At Bell’s high school graduation party in June 2006, he and Thomas Schwab punched and kicked another guest, Michael Higgins, knocking him unconscious. Schwab and Bell were charged with the same offenses but Schwab was granted admission to PTI in consideration for testifying against Bell.

Bell did not apply for PTI until after his trial, despite the requirement of R. 3:28(h) that applications be made  within 28 days of indictment.

Overruling the prosecutor’s rejection, Ocean County Superior Court Judge Wendel Daniels found Bell entitled to PTI. He said Bell and Schwab were similarly situated and the prosecutor’s decision to deny Bell PTI was a clear error of judgment.

Daniels relied on State v. Halm, 319 N.J. Super 569 (App. Div. 1999), where the defendant was charged with first, second and third degree offenses in connection with a sexual assault. His timely application for PTI was rejected by the court staff and the prosecutor. After he was convicted only of third-degree cocaine possession, he moved for reconsideration. The motion judge said no but the Appellate Division reversed.

In Bell’s case, the Appellate Division distinguished Halm because Bell did not make a timely PTI application.

The Supreme Court agreed in a 6-0 ruling, saying, “Whether pre-indictment or post-indictment, an accused must apply for admission to PTI prior to trial.”

Judge Mary Catherine Cuff, writing for the court, said it was “of no moment” that a jury found the defendant not guilty of first- or second-degree crimes that might have barred his path to PTI.

She said the goals of PTI, first established by statute in 1979, “have been completely frustrated” by Bell’s admission to PTI, nearly four years from the date of the altercation that gave rise to the charges.

PTI admission in this case “not only thwarts the purpose of this particular diversionary program because the defendant has been found guilty of a criminal offense but also nullifies a valid verdict of guilt.

“We know of no authority that permits a court to nullify a valid verdict through the device of a belated application to a diversionary program,” she said.

Assistant Public Defender Dale Jones, whose office represented Bell,  called it “troubling” that he will receive a harsher sentence than his codefendant, absent any distinctions between the criminal acts of the two.

“People who commit the same offense ought to be treated the same way,” Jones said. “A decision like this kind of makes it, who’s got the best lawyer and who wins the race to the prosecutor’s office.”

Supervising Assistant Ocean County Prosecutor Samuel Marzarella said court’s decision, and its decision not to apply the Halm case, reaffirm the time restrictions on applying for PTI in the face of defense counsel’s arguments.

NJ Appeals Court Affirms Suppression of Contraband – Not Enough Evidence to Support Detaining Vehicle or K-9 Search

As reported by NJ.com, a New Jersey state appeals court has ruled that heroin found after a motor vehicle stop in June 2011 cannot be used as evidence against a North Plainfield man because police improperly detained the vehicle and used a drug-sniffing dog.

Appellate judges upheld a lower court’s ruling that there was an “insufficient legal basis” for a Warren Township Police Officer’s request to the Defendant for consent to search the vehicle or the use of the K-9 unit, according to the decision issued on Friday.

The “dog sniff” occurred nearly an hour or more after the initial stop, the decision states.  The Defendant’s employer owned the vehicle and later consented to a search, at which time police found six bricks of heroin in the glove compartment, the decision states.

“(The Officer’s) hunch was correct, but it was nothing more than a hunch and, consequently, insufficient to warrant a request to search or a dog sniff not concurrent with the stop,” the decision states.

The appellate decision rejected the state’s appeal of the July 2013 ruling to suppress the heroin as evidence. The Defendant, 38, has been charged with possession of heroin with the intent to distribute.

He was stopped on June 10, 2011 for driving with excessively tinted windows, the decision states. The Officer learned that Defendant’s driver’s license was suspended, and he was unable to produce a current insurance card for the vehicle, the decision states.

Ferreiro suspected criminal activity due to “’(the Defendant’s) extreme and unusual nervousness,’ the fact that his ‘stories were a little different,’ and the tobacco shavings” seen in the vehicle, the decision states. After the Defendant refused to consent to a search of the vehicle, Ferreiro called in the K-9 unit, the decision states.

But in the initial ruling, Superior Court Judge John Pursel found that “there were insufficient facts to support a reasonable and articulable suspicion of criminal activity,” the decision states.

“The employer’s consent to search was prompted by the improper dog sniff and cannot cure the constitutional violations that led up to it,” the decision states.

Teen Demands $600 a Week from Parents – Judge Says No Way

As reported by NJ.com, a Superior Court judge today refused to order a Lincoln Park couple to pay private school and college tuition for their 18-year-old daughter who moved out of their house and is suing for financial support.

“Do we want to establish a precedent where parents live in basic fear of establishing rules of the house?” Family Division Judge Peter Bogaard asked.

Rachel Canning, a senior at Morris Catholic High School, went to court to force her parents, Sean and Elizabeth Canning, to pay her child support, her private school tuition, medical and related bills, college expenses and legal fees. Canning is an honor student and athlete, but her parents have stopped paying her bills because, they say, she would not obey their rules.

Bogaard refused to issue the requested emergency order, which would have awarded the teen more than $600 a week.

The judge said no emergency exists because Morris Catholic has said Canning may continue attending the school despite her tuition not being paid, and because the final deadline of May 1 has not yet arrived for college applications. Morris Catholic’s annual tuition is $12,700; Rachel owes $5,306, court papers say.

Allowing the emergency order “would represent essentially a new law or a new way of interpreting an existing law,” Bogaard said. “A kid could move out and then sue for an XBox, an iPhone or a 60-inch television.”

The judge’s decision followed a more than two-hour hearing in Morristown. The Cannings and their daughter sat on opposite sides of the courtroom, rarely exchanging glances. Both sides appeared tense and sad. Several of Rachel Canning’s friends were seated in the gallery.

Bogaard scheduled another hearing for April 22. The case may be headed for trial on the key issue of whether Rachel Canning was “emancipated” from her parents when she defied their order to stop seeing her boyfriend and instead moved out of their house on Oct. 30, two days before she turned 18.

Rachel Canning said in court papers that she has been living for the past four months at the home of her best friend, the daughter of Morris County attorney who has “advanced” her legal fees.

Her parents countered that she voluntarily left home because she didn’t want to abide by house rules, such as being respectful, keeping a curfew, doing a few chores and ending a relationship with a boyfriend they said was a bad influence.

Rachel remains “unemancipated,” or dependent on her parents, because she needs their support to complete her education at Morris Catholic and to pay for her college education, her attorney said.

Rachel’s attorney further alleged that the Cannings treated their daughter in an “abnormal” way that made it “untenable” for her to stay in the house. For instance, the attorney claimed that Sean Canning would not allow Rachel to have a boyfriend while a senior in high school. Rachel Canning also claims her parents are abusive, contributed to an eating disorder she developed and pushed her to get a basketball scholarship.

The parents’ attorney countered that Rachel could easily have stayed at the house, which she said had “a loving, nurturing environment.

“She voluntarily decided to leave because she didn’t like the rules they were imposing, and that makes her “emancipated.”

Bogaard cited a vulgar voice mail left by Rachel for her mother. “Have you ever seen a child show such gross disrespect for a parent?” he asked. “Is there a point at which a parent can say they don’t have to pay for college?”

The judge also cited certifications submitted by the Sean and Elizabeth Canning about their daughter’s alleged history of staying out and drinking during the week. Once, he said, she was driven home by her boyfriend’s parents at 3 a.m.

“What kind of parents would the Cannings be if they did not discipline her?” he asked. “The Cannings had the right to set up rules.”

Despite the apparently wide gap between Rachel and her parents, Bogaard held out hope for a possible reconciliation.

He read a letter Rachel sent to her parents in October, the month that she left the house.

“Hey guys, I want to apologize for my actions,” Rachel said. “I really need to realize there are consequences for the things that I do. I am trying to change. I do miss you guys. I am trying to turn over a new leaf.”

Then, the judge said, “This family is well worth the effort to salvage. It does appear more energy has been utilized to tear up this family than to figure out how it can be brought back together.”

Proposed Bill Would Eliminate No-Fault Divorce in Kansas

As reported by The Wichita Eagle, a bill recently introduced in the Kansas State Legislature would do away with no-fault divorces. Like New Jersey, Kansas is currently a no-fault divorce state, meaning that couple’s could seek divorce based solely on irreconcilable differences, as opposed to a fault ground, such as abandonment or adultery.

Kansas Rep. Keith Esau, a member of the House Judiciary Committee, introduced the bill, but he did not author it. He said he submitted it on behalf of a legislator who is not on the committee. Esau said he has not been given permission to disclose the name of that legislator.

But he said he supports the bill’s intent.

“No-fault divorce gives people an easy out instead of working at it,” Esau said. “It would be my hope that they could work out their incompatibilities and learn to work together on things.”

Rep. Jim Ward, D-Wichita, another Judiciary member, opposes the bill.

“We really should let people decide when to end relationships,” he said.

Esau denied that bill was an example of government overreach. He said the state gives benefits to married couples, such as tax breaks, so couples should not enter into the institution of marriage lightly.

“Don’t think this is something that you can do temporarily and get out of,” Esau said.

The bill would require Kansans seeking a divorce to prove their spouses’ fault, a requirement which was common throughout the United States 60 years ago.

Ward, a practicing attorney who has handled divorce cases, said this would be foolish.

“That’s really not a healthy way to deal with families that are changing,” Ward said.

He said that making divorces less contentious helps couples with children maintain respectful relationships because they will need to continue to parent together.

Esau said that the state has a vested interest in supporting “strong families” and that divorce undermines that.

“I think we’ve made divorce way too easy in this country,” he said. “If we really want to respect marriage it needs to be a commitment that people work at and don’t find arbitrary reasons to give up.”

Morgan O’Hara Gering, a family law attorney in Wichita, questioned whether the bill would actually deter many people from seeking divorces.

“From my experience I can’t see that it’s going to stop people from getting divorced,” she said.

Instead O’Hara Gering thinks the bill would just make divorces nastier by requiring people to prove their spouse’s fault in court.

“It could create a lot more litigation and a lot more headaches … just to fight about who’s to blame,” she said.

Read more here: http://www.kansas.com/2014/02/07/3273731/kansas-bill-would-eliminate-no.html#storylink=cpy

NJ Public Defender & NJ ACLU Push For Deadlines for Criminal Trials

As reported by Bill Wichert of the Star-Ledger, after spending nearly five years in jail, 48-year-old Newark resident Tariq Kyam, who has prior convictions, is about a month away from what was expected to be the first of his six robbery trials.

There will be six trials, because he is charged in six separate robberies and he won a motion to sever the incidents into separate trials.

“It’s been a pretty active case for a case that hasn’t been resolved yet,” Kyam’s attorney, John McMahon, said the week before the Dec. 18 hearing, noting the various proceedings in a case involving multiple alleged offenses.

But the long-running case also illustrates how, unlike most other states and the federal government, New Jersey has no fixed deadline for when criminal trials must begin.

Now some legal groups are calling on the state Supreme Court to start the clock.

Through a committee formed by Chief Justice Stuart Rabner, the New Jersey Office of the Public Defender has proposed a deadline for when trials must commence. In a pair of court cases, the American Civil Liberties Union of New Jersey also has been pushing for a time limit.

A time limit, supporters say, would reduce incarceration costs, assist in gathering evidence and bring greater fairness and accountability to a system where defendants may face different time frames in bringing their cases to trial.

“That sort of disparity and disparate treatment … just breeds disrespect for the entire criminal justice system,” Assistant Public Defender Dale Jones said. “You want to be treated … quickly, fairly and efficiently in the criminal justice system.”

Chief Justice Stuart Rabner is chairing the Supreme Court Joint Committee on Criminal Justice, which is exploring ways to reduce delays in bringing criminal cases to trial.Robert Sciarrino/The Star-Ledger

A driving force behind setting a time limit are concerns over defendants in pre-trial detention who are unable to afford bail. Some innocent people may be inclined to plead guilty because doing so seems like their shortest route out of jail, supporters say.

Giving pre-trial detainees a sense of certainty about when their cases would go to trial “gives meaning to the presumption of innocence,” said Alexander Shalom, senior staff attorney for the ACLU-NJ.

“That’s a meaningless presumption if we allow the person to be taken from their family, taken from their work, taken from their home for years on end,” said Shalom. “You’re presumed innocent, but you’re treated as if you’re guilty.”

As detainees are brought to trial under a fixed time frame, taxpayers would save money on the costs of housing them at county jails, Jones and Shalom said. As Jones put it, “the fewer days … they spend in a county jail, the greater the savings.”

One of those detainees is Newark resident Lamarr Cavaness.

Cavaness,22, has been in custody at the Essex County Correctional Facility since July 2012 in connection with an armed carjacking case. His next scheduled court appearance is in January.

His mother, Crystal Perry, said Cavaness is innocent and “doesn’t deserve to sit there like that,” but Perry said she can’t afford the roughly $300,000 bail needed to have him released.

“It’s a sad fact of reality, but that’s what we’re faced with every day out here,” Perry said. “Every day there (are) parents like myself that wish they can fight harder for their kids, but we can’t … and I just don’t know what to do.”

A defendant’s right to a speedy trial is guaranteed by the Sixth Amendment of the U.S. Constitution. The judiciary in New Jersey also has established goals for when cases should be disposed.

Without a set time limit, however, New Jersey courts utilize a four-factor test to determine whether a defendant’s right to a speedy trial has been violated on a case-by-case basis.

Those factors — based on a 1972 U.S. Supreme Court decision — are the length of the delay; reason for the delay; the defendant’s assertion of the right to a speedy trial; and the prejudice caused to the defendant by the delay. Prejudice could include the impact on a defendant’s employment and finances.

But some critics say the discretion used by judges in applying that test can yield unpredictable results.

Ronald Chen, acting dean of Rutgers Law School in Newark who has served as counsel for the ACLU-NJ, said the test is “too flexible to really be meaningful in any practical circumstance.”

A time limit, Chen added, “provides certainty. It’s actually for the benefit of prosecutors. There’s no more guesswork about how long is too long.”

A fixed time frame also would assist both sides in securing witnesses, Chen said. “It’s much easier to get evidence both ways, prosecution and defense, if the trial occurs fairly quickly afterwards,” Chen said. “People’s memories fade.”

In an April decision — involving a case where the ACLU-NJ called for establishing a time limit — the state Supreme Court acknowledged how “a case-by-case analysis rather than a bright-line time limitation may lead to seemingly disparate results.”

In one case, for example, a delay of 344 days was deemed unacceptable, while in another case, a 32-month delay was considered justifiable, the decision states.

But the court declined to adopt a specific time limit and upheld the four-factor test as the governing standard to evaluate speedy trial claims.

“We do so with the knowledge that facts of an individual case are the best indicators of whether a right to a speedy trial has been violated,” according to the decision.

Chaired by Chief Justice Stuart Rabner, the Supreme Court Joint Committee on Criminal Justice is now considering a time limit. The committee will ultimately present its recommendations to the Supreme Court.

As committee members, attorneys with the public’s defender’s office have proposed a 180-day time limit to bring cases to trial after a detainee has been indicted, according to Jones.

But several exceptions would be built into such a deadline to stop the clock, such as when a defendant files certain pre-trial motions, Jones said. That type of exception could have paused a time limit in Kyam’s case, given his motion to separate the charges against him into separate trials.

“I think it’s fair to the state if a defendant files a motion that’s obviously gonna take up time,” Jones said. “It’s a rule of fairness. You have to be … equally fair to the state as you are to the defendant.”

Joseph Barraco, assistant director for criminal practice in the state’s Administrative Office of the Courts, who also is a committee member, said setting a time limit would improve the system and provide greater accountability to the public, defendants and victims.

But Barraco also pointed out that the system still needs enough judges to enforce a time limit and expedite cases. A shortage of judges is frequently cited as one of the major factors behind judicial delays in New Jersey.

“Obviously … the only person that can dispose of cases is a judge,” Barraco said.