Princeton Office
Saturday, May 19, 12:31 pm
NJ Supreme Court says police officer cannot testify about drug transaction
New Jersey municipal courts and trial courts have bent over backwards to allow police officers to testify that they observed what they believed to be a narcotics transaction. There seemed to be no end to what a court would allow under a quasi-expert exception. Prosecutors use the officer’s testimony to taint juries. Obviously, if the police officer says he observed a narcotics transaction and the court is treating him as an expert, this must be true and the defendant must be guilty. The New Jersey Supreme Court just put an end to insanity in State of New Jersey v. Kelvin L. McLean a/k/a Kevin McLean. The Supreme Court held, “the opinion offered by the officer does not meet the requirements needed to qualify it as a lay opinion and permitting the officer to testify about his opinion invaded the fact-finding province of the jury.”
The familiar standards governing expert opinion testimony are found in three separate rules. See N.J.R.E. 702, 703, 705. An expert is one who is qualified “by knowledge, skill, experience, training, or education” and who is therefore permitted to offer testimony in the form of an opinion that “will assist the trier of fact to understand the evidence or to determine a fact in issue.” N.J.R.E. 702. Experts, unlike other witnesses, are permitted to rely on information that would otherwise be hearsay, and to present it to the jury, if others in their field of expertise reasonably and customarily do so. N.J.R.E. 703; see N.J.R.E. 705 (governing disclosure by experts and manner of questioning experts). The Court has held, in its seminal decision, that because expert opinions in narcotics prosecutions are governed by N.J.R.E. 702, such testimony is limited to “relevant subject[s] that [are] beyond the understanding of the average person of ordinary experience, education, and knowledge,” State v. Odom, supra, 116 N.J. at 71. Expert testimony is not admissible if the transactions at issue occurred in a straightforward manner. Moreover, experts may not, in the guise of offering opinions, usurp the jury’s function by, for example, opining about defendant’s guilt or innocence or about the credibility of parties or witnesses. Unless confined to their proper role, expert opinions may present the risk of undue prejudice to defendants. As for the use of hypothetical questions, although permissible, their use is not unbounded. The Court has imposed a number of safeguards, including that defendant’s name not be included in the question or answer and that the judge should instruct the jury that they are not bound by the expert’s opinion because the decision about guilt is theirs alone.
Lay opinion testimony can only be admitted if it falls within the narrow bounds of testimony that is based on the perception of the witness and that will assist the jury in performing its functions either by helping to explain the witness’s testimony or by shedding light on the determination of a disputed factual issue. Perception rests on the acquisition of knowledge through use of one’s sense of touch, taste, sight, smell or hearing. Although our appellate court, in explaining lay opinion testimony, has referred as well to the officer’s training and experience, the analysis of admissibility has been, as it must be, firmly rooted in the personal observations and perceptions of the lay witness in the traditional meaning of Rule 701. There are, however, limits that have traditionally been imposed on lay opinion testimony. For example, unlike expert opinions, lay opinion testimony is limited to what was directly perceived by the witness and may not rest on otherwise inadmissible hearsay.
Can your criminal records be expunged? Yes they can!
A criminal record can have a devastating impact on one’s ability to get a job. Sometimes it is unfair to punish people for mistakes that they made while they were young. New Jersey law recognizes this fact and has a procedure to expunge a person’s record.
New Jersey Expungement Statutes
N.J.S.A. 2C:52-2. Indictable Offenses.
a.In all cases, except as herein provided, wherein a person has been convicted of a crime under the laws of this State and who has not been convicted of any prior or subsequent crime, whether within this State or any other jurisdiction, and has not been adjudged a disorderly person or petty disorderly person on more than two occasions may, after the expiration of a period of 10 years from the date of his conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later, present a duly verified petition as provided in section 2C:52-7 to the Superior Court in the county in which the conviction was entered praying that such conviction and all records and information pertaining thereto be expunged. Notwithstanding the provisions of the preceding paragraph, a petition may be filed and presented, and the court may grant an expungement pursuant to this section, although less than 10 years has expired in accordance with the requirements of the preceding paragraph where the court finds: (1)less than 10 years has expired from the satisfaction of a fine, but the 10-year time requirement is otherwise satisfied, and the court finds that the person substantially complied with any payment plan ordered pursuant to N.J.S.2C:46-1 et seq., or could not do so due to compelling circumstances affecting his ability to satisfy the fine; or (2)at least five years has expired from the date of his conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later; the person has not been convicted of a crime, disorderly persons offense, or petty disorderly persons offense since the time of the conviction; and the court finds in its discretion that expungement is in the public interest, giving due consideration to the nature of the offense, and the applicant’s character and conduct since conviction. In determining whether compelling circumstances exist for the purposes of paragraph (1) of this subsection, a court may consider the amount of the fine or fines imposed, the person’s age at the time of the offense, the person’s financial condition and other relevant circumstances regarding the person’s ability to pay. Although subsequent convictions for no more than two disorderly or petty disorderly offenses shall not be an absolute bar to relief, the nature of those conviction or convictions and the circumstances surrounding them shall be considered by the court and may be a basis for denial of relief if they or either of them constitute a continuation of the type of unlawful activity embodied in the criminal conviction for which expungement is sought.
b.Records of conviction pursuant to statutes repealed by this Code for the crimes of murder, manslaughter, treason, anarchy, kidnapping, rape, forcible sodomy, arson, perjury, false swearing, robbery, embracery, or a conspiracy or any attempt
to commit any of the foregoing, or aiding, assisting or concealing persons accused of the foregoing crimes, shall not be expunged. Records of conviction for the following crimes specified in the New Jersey Code of Criminal Justice shall not be subject to expungement: Section 2C:11-1 et seq. (Criminal Homicide), except death by auto as specified in section 2C:11-5; section 2C:13-1 (Kidnapping); section 2C:13-6 (Luring or Enticing); section 1 of P.L.2005, c.77 (C.2C:13-8) (Human Trafficking); section 2C:14-2 (Aggravated Sexual Assault); section 2C:14-3a (Aggravated Criminal Sexual Contact); if the victim is a minor, section 2C:14-3b (Criminal Sexual Contact); if the victim is a minor and the offender is not the parent of the victim, section 2C:13-2 (Criminal Restraint) or section 2C:13-3 (False Imprisonment); section 2C:15-1 (Robbery); section 2C:17-1 (Arson and Related Offenses); section 2C:24-4a. (Endangering the welfare of a child by engaging in sexual conduct which would impair or debauch the morals of the child); section 2C:24-4b(4) (Endangering the welfare of a child); section 2C:24-4b. (3) (Causing or permitting a child to engage in a prohibited sexual act); section 2C:24-4b.(5)(a) (Selling or manufacturing child pornography); section 2C:28-1 (Perjury); section 2C:28-2 (False Swearing); section 2C:34-1b.(4) (Knowingly promoting the prostitution of the actor’s child); section 2 of P.L.2002, c.26 (C.2C:38-2) (Terrorism); subsection a. of section 3 of P.L.2002, c.26 (C.2C:38-3) (Producing or Possessing Chemical Weapons, Biological Agents or Nuclear or Radiological Devices); and conspiracies or attempts to commit such crimes. Records of conviction for any crime committed by a person holding any public office, position or employment, elective or appointive, under the government of this State or any agency or political subdivision thereof and any conspiracy or attempt to commit such a crime shall not be subject to expungement if the crime involved or touched such office, position or employment. c.In the case of conviction for the sale or distribution of a controlled dangerous substance or possession thereof with intent to sell, expungement shall be denied except where the crimes involve: (1)Marijuana, where the total quantity sold, distributed or possessed with intent to sell was 25 grams or less; (2)Hashish, where the total quantity sold, distributed or possessed with intent to sell was five grams or less; or (3)Any controlled dangerous substance provided that the conviction is of the third or fourth degree, where the court finds that expungement is consistent with the public interest, giving due consideration to the nature of the offense and the petitioner’s character and conduct since conviction. d.In the case of a State licensed physician or podiatrist convicted of an offense involving drugs or alcohol or pursuant to section 14 or 15 of P.L.1989, c.300 (C.2C:21-20 or 2C:21-4.1), the court shall notify the State Board of Medical Examiners upon receipt of a petition for expungement of the conviction and records and information pertaining thereto.
Amended 1989, c.300, s.23; 1993, c.301; 1994, c.133, s.6; 2009, c.188, s.1.
Who says hiring the right lawyer doesn’t matter? Not Lawrence Taylor.
Troubled Giant’s great, Lawrence Taylor was facing charges of having sex with a child prostitute. The charges could have put him in jail for the better part of his natural life. Men of wealth, like Taylor don’t sit back and wait. They hire the best criminal attorneys that money can buy. Many people opt to let a court appointed an attorney to handle their fate. While the Public Defender’s office is filled with many good attorneys, they are overworked and stretched thin. Too thin to give you the type of representation that money can buy. Today was the best example of Allan Dershowitz’s adage, “A lot of money buys a lot of justice.” Lawrence Taylor’s attorney successfully negotiated a plea bargain that kept the Pro-Ball linebacker out of jail. Six years probation and no jail for Taylor.
While your legal circumstance may be different, you deserve a good attorney. While money is important, you cannot put a price on your freedom. If you have questions about a criminal case, please feel free to give me a call. After a free consultation, you can decide for yourself!
Law Offices of Edward Harrington Heyburn, PC
103 Carnegie Center Drive
Suite 300
Princeton, NJ 08540
Tel. (609) 259-7600
Fax (609) 259-7303
heyburn@heyburnlaw.com
The Law Offices of Edward Harrington Heyburn, PC is a full service law firm focusing on Personal Injury, Workers Compensation, Municipal Court Matter, Driving Under the Influence/Driving While Intoxicated, Traffic Matters, Domestic Violence, Family Law as well as DYFS Removal Cases.
We have moved!
Please note that we have moved to:
103 Carnegie Center Drive
Suite 300
Princeton, New Jersey 08540
Tel. (609) 259-7600
Fax (609) 259-7303
heyburn@heyburnlaw.com
Rutgers student jumps to his death while roommate and friend face criminal charges and possible wrongful death lawsuit
The Huffington Post reported today that a freshman at Rutgers University jumped to his death after fellow students invaded his privacy. “Dharun Ravi, and fellow freshman Molly Wei have been charged with invasion of privacy for secretly leaving a camera in Clementi’s room and posting his sexual encounter on the web. Each faces up to five years in prison.” While many criminal actions have a civil counterpart, none have the type with such far reaching effects of the wrongful death act.
“The common law recognizes various causes of action relating to the right to privacy. One of those is the tort of intrusion on seclusion. “One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other 95*95 for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.” Restatement (Second) of Torts, § 652B (1977). To be an actionable tort, an invasion of privacy need not be physical; it can also arise “by the use of the defendant’s senses * * * to oversee or overhear the plaintiff’s private affairs * * *.” Or “[i]t may be by some other form of investigation or examination into his private concerns * * *.” Id. cmt. b. To recover under this cause of action the plaintiff need not prove publication of any information. Ibid. In discussing section 652B, the Appellate Division declared, “The thrust of this aspect of the tort is * * * that a person’s private, personal affairs should not be pried into.”Hennessey v. Coastal Eagle Point Oil Co., 129 N.J. 81 (1992)(citing Bisbee v. John C. Conover Agency, 186 N.J. Super. 335, 340, 452 A.2d 689 (1982)). Ironically, the family will have to prove that they gained a pecuniary benefit from the victim to recover under New Jersey law. “As this Court has said in an infant death case, “the pecuniary injury designated by the statute is nothing more than a deprivation of a reasonable expectation of a pecuniary advantage which would have resulted by a continuance of the life of the deceased,” Cooper v. Shore Electric Co., 63 N.J.L. 558, 567 (E. & A. 1899). See also McStay v. Pryzchocki, 7 N.J. 456, 461 (1951).” Green v. Bitner, 85 N.J. 1 (1980). Sometimes the law does not work as we anticipate.
The victim’s family may find some sanctuary in New Jersey’s punitive damages law. An act to give rise to right to punitive damages must be actuated by
“(1) actual malice, which is nothing more or less than intentional wrongdoing — an evil-minded act; or (2) an act accompanied by a wanton and wilful disregard of the rights of another. Clearly, each case must be governed by its own peculiar facts.” LaBruno v. Lawrence, 64 N.J. Super. 570, 575 (App. Div. 1960) certif. denied 34 N.J. 323 (1961).
Hopefully, this tragic loss can be an example to both those contemplating suicide and those looking to out someone’s private life.
Follow me on Twitter: http://twitter.com/NJInjuryLawyer
- Personal Injury
- Workers Compensation
- Criminal Matters
- Traffic Matters
- DWI/DUI
- Municipal Court
- Family Law, Divorce, Custody and DYFS Cases.
Call for a free consultation! (609) 259-7600
37 Robbinsville-Allentown Road, Robbinsville, NJ 08691
Tel. (609) 259-7600 Fax (609) 259-7303
heyburn@heyburnlaw.com
Not Guilty – Mercer County Jury Exhonerates Hightstown Man of Aggravated Sexual Assault
August 13, 2010 – After a two (2) week trial, Edward Harrington Heyburn, Esq. convinced a Mercer County jury that a Hightstown man was not guilty of Aggravated Sexual Assault and related charges. It took the jury approximately four (4) hours of deliberation before it returned a not guilty verdict to each of the six (6) charges levied by the State. What the jury did not hear is that in 2009, a Monmouth County jury refused to indict Mr. Heyburn’s client for the same allegations that the “alleged victim” made in Roosevelt, New Jersey. Hon. Pedro Jimenez not only refused to tell the jury that the defendant was not indicted but allowed the State to introduce evidence of the unindicted charges to explain why the “alleged victim” did not report her story to the police for over a decade.
After the trial, Ed Heyburn said, “It was clear that the ‘alleged victim’ fabricated her story. She gave approximately seven different versions that were all inconsistent with each other.” The New Jersey State Police which patrols Roosevelt, spearheaded the investigation. Trooper Jessica Baker conceded on the stand that Mr. Heyburn’s client maintained his innocence even after that State Police lied to him. Trooper Baker admitted that it is a common tactic for the New Jersey State Police to lie to suspects to gain a confession. She and Det. Rosica said they had DNA evidence from semen in his pants. They advised him that he had left the pants at the house after a sexual assault. Mr. Heyburn’s client, embraced by innocence, told the New Jersey State Police to test the pants because there is no way that his semen could be in the victim’s house.
On cross examination, Mr. Heyburn forced Trooper Jessica Baker to admit that the entire victim statement only lasted 20 minutes. Furthermore, despite the “alleged victim’s” accusations that the client ejaculated on her hand over 1,000 times, the New Jersey State Police never went to the scene where she said the abuse occurred. The State Police never looked for semen stains on the rug or a stuffed doll the mother kept from when the “alleged victim” was young.
In an effort to save their case, the State called Lynn Taska, Ph.D. Dr. Taska is a psycologist from Metuchen that testifies to explain why an “alleged” victim of sexual assault may give inconsistent statements and testify to facts that never occurred. Interestingly, Dr. Taska offered, on crossexamination, that a “real victim” of sexual assault may be raped by one person and blame a completely innocent person. This left the door open for the possibility that the State’s complaintant was raped but by someone other than Mr. Heyburn’s client.
The not guilty verdict was the first step in restoring Mr. Heyburn’s client’s reputation.
This case is proof that justice can only be obtained when you hire a trial attorney who is ready, willing and able to defend you before a jury of your peers.
Follow me on Twitter: http://twitter.com/NJInjuryLawyer
- Personal Injury
- Workers Compensation
- Criminal Matters
- Traffic Matters
- DWI/DUI
- Municipal Court
- Family Law, Divorce, Custody and DYFS Cases.
Call for a free consultation! (609) 259-7600
37 Robbinsville-Allentown Road, Robbinsville, NJ 08691
Tel. (609) 259-7600 Fax (609) 259-7303
heyburn@heyburnlaw.com
Domestic Violence and Seizure of “Weapons”
If you are charged with an act of domestic violence, any weapons you have will probably be seized. What you will be surprised to find out is what the Prosecutor’s Office considers a weapon. It may be your car, a laptop, cell phone or your favorite Ipod. You may also be surprised to find out that you may never get these items back even if you are exonherated of the charges.
In essence, there are three ways in which weapons can be returned. First, if the domestic violence complaint is dismissed and no probable cause exists to indict the aggressor. Second, the person who subjects the victim to domestic violence had any charges pending against him/her dismissed. The last remaining option is whether, even if the charges against the defendant were dismissed, and the domestic violence complaint was dismissed and no probable cause existed to indict the defendant, the court, after holding a hearing, determines there still existed some underlying reason to seize the weapons to protect the victim of the domestic violence, i.e. a violent situation no longer existed. If you are found not guilty or the charges are dismissed than the Prosecutor can ask for a hearing and argue that you are unfit to get your property/weapon back.
Call for a free consultation! (609) 259-7600
