Nov172014

Recent changes to New Jersey’s child sexual abuse and child pornography laws

A bill recently enacted makes significant changes to New Jersey’s child sexual abuse and child pornography laws. The new provisions clarify the law, update it to apply to a broader range of technologies, and expand the penalties for child sexual abuse and exploitation, bringing it more into line with federal law.

 

Key provisions in the new law include the following:

  • Minors up to the age of 18 are now protected from sexual abuse and exploitation under the child endangerment statute. Previously, the statute only protected minors up to the age of 16.
  • Updated definitions and terminology have been incorporated into the child sexual abuse and child pornography statutes to better address digital technology and to prevent offenders from using new technology to exploit loopholes in the law.
  • The legislation expands the scope of criminal liability for child pornography possession, distribution, and production offenses. Some offenses have been upgraded and subject to harsher penalties, while other offenses are now subject to mandatory minimum sentences.
  • The law also adds a provision to Megan’s Law authorizing special lifetime parole supervision for child pornography offenders, and it makes these offenses ineligible for expungement.

 

For more information about child sexual assault and child pornography offenses in New Jersey, contact the Law Offices of Palumbo & Renaud at 908-337-7353 and ask to schedule a free legal consultation. Sex Crime attorney Anthony N. Palumbo serves clients facing all types of criminal charges, primarily in Essex County, Middlesex County, Monmouth County, Ocean County, and Union County. Call today and find out how Mr. Palumbo can help you with your charges.

 

 

 

Jan232014

Union County Sex Crime Lawyer – Child Porn Distribution

The Union County Prosecutor’s Office held a forum on “revenge porn” last month, drawing attention to the growing trend of school-age students sharing nude photographs of each other for malicious purposes. Although similar to “sexting,” revenge porn involves an intent on the part of the offender to embarrass or humiliate their target, who is often an ex-boyfriend or ex-girlfriend.

 

Incidents of revenge porn can result in charges for a number of different criminal offenses. Sharing nude pictures of a minor would constitute child pornography distribution, for example, regardless of whether the offender was also a minor and regardless of whether the images were intended to be shared for pornographic purposes.

 

Representatives from the prosecutor’s office, however, stated that they try to avoid prosecution entirely for offenses committed by minors when the images are shared with only a small number of people, and even in more serious cases they limit the charges to harassment. While the penalties for child pornography crimes are quite severe—up to 10 years incarceration and up to $250,000 in fines—harassment is generally classified as a disorderly persons offenses and the penalties are limited to no more than 6 months in prison and $1,000 in fines.

 

For more information about revenge porn and other sex crimes in Union County, contact me, Anthony N. Palumbo, Esq., at 908-337-7353.

 

 

 

 

Dec042013

Middlesex County sex offender not entitled to new trial on Megan’s Law address registration violation

Following his conviction in 2010 for failing to verify his address and failing to register a change of address as required by Megan’s Law, a Middlesex County sex offender was deemed ineligible for a new trial last month. State v. Harcher, No. A-4841-11T4 (Oct. 1, 2013).

 

The defendant was convicted for child endangerment in 1994 and was sentenced to jail time as well as lifetime supervision under Megan’s Law. Upon his release from prison he was advised of the sex offender address registration requirements that applied under Megan’s Law and he provided his mother’s address as his residence. When he subsequently failed to verify this address, however, the police went to the property and discovered that his mother had moved away. He was then charged with failing to verify his address and failing to notify police of a change in address.

 

Before seeking a new trial, the defendant had appealed his conviction on the ground that there was insufficient proof, but the jury and the court disagreed. The defendant then commenced this litigation, claiming that he had ineffective legal counsel. His first argument was that his attorney failed to adequately investigate the existence of an unnamed police officer who allegedly told him that he did not have to register. This claim, the court found, was completely uncorroborated, and his attorney’s failure to find the mystery police officer provided no basis for a new trial. The defendant also contended that his attorney “coerced” him not to testify, but the court concluded that it was more “advice” than “coercion” and that it did not amount to inadequate legal performance.

 

For more information about defending sex offender registration violations in Middlesex County, contact me, Anthony N. Palumbo, Esq., at 908-337-7353 for a free consultation.

Nov122013

Recent changes to New Jersey’s child sexual abuse and child pornography laws

A bill enacted this summer makes significant changes to New Jersey’s child sexual abuse and child pornography laws. The new provisions clarify the law, update it to apply to a broader range of technologies, and expand the penalties for child sexual abuse and exploitation, bringing it more into line with federal law.

 

Key provisions in the new law include the following:

  • Minors up to the age of 18 are now protected from sexual abuse and exploitation under the child endangerment statute. Previously, the statute only protected minors up to the age of 16.
  • Updated definitions and terminology have been incorporated into the child sexual abuse and child pornography statutes to better address digital technology and to prevent offenders from using new technology to exploit loopholes in the law.
  • The legislation expands the scope of criminal liability for child pornography possession, distribution, and production offenses. Some offenses have been upgraded and subject to harsher penalties, while other offenses are now subject to mandatory minimum sentences.
  • The law also adds a provision to Megan’s Law authorizing special lifetime parole supervision for child pornography offenders, and it makes these offenses ineligible for expungement.

 

For more information about child sexual assault and child pornography offenses in New Jersey, contact the Law Offices of Palumbo & Renaud at 908-337-7353 and ask to schedule a free legal consultation. Palumbo & Renaud serves clients facing all types of criminal charges, primarily in Essex County, Middlesex County, Monmouth County, Ocean County, and Union County. Call today and find out how we can help you.

 

 

 

Nov062013

Convictions for prostitution were not a single “crime spree” eligible for expungement, court holds

Criminal convictions can be expunged in New Jersey after a period of 10 years, but only for offenders who have no prior or subsequent convictions. In limited circumstances, an offender may be able to prove that multiple convictions were so closely related to each other that they form a single event for purposes of expungement, but this was not the case in a recent Appellate Division opinion denying expungement for two prosecution offenses. In re Expungement of the Crim. Records of C.A.D. (Jul. 18, 2013).

 

The petitioner in this case owned and operated two massage parlors that were fronts for prostitution. Middlesex County authorities arrested him in 2002 in connection with one of the massage parlors and charged him with various prostitution offenses. Two months later similar charges were filed against him in a separate indictment in Bergen County, where the second massage parlor was located. He eventually pled guilty to one count of fourth degree maintaining a nuisance in each case and after serving his probation he filed an expungement petition for both convictions in Middlesex County. Hoping to avoid the restriction on multiple convictions, he contended that his convictions were part of a common “crime spree” and should be treated as a single event for expungement.

 

The court rejected the petitioner’s “crime spree” argument and denied his request for expungement, concluding that he had been convicted of two separate offenses and failed to prove otherwise. As the court noted, the petitioner’s crimes occurred in different counties and resulted in different criminal indictments; they simply could not be considered truly simultaneous under the totality of the facts.

 

If you’re facing sex crimes charges in Middlesex County and have questions about the possible penalties and legal consequences, or if you have an existing sex crimes conviction that you’d like to get expunged, call the Law Offices of Palumbo & Renaud at 908-337-7353.

Oct072013

Court holds that juvenile accused of sexual assault cannot be retried in Monmouth County

The Appellate Division held in July that the state could not appeal the dismissal of a Monmouth County juvenile sexual assault case. The state’s appeal was nothing more than an attempt to commence a second prosecution for the same offense, the court concluded, in violation of the Double Jeopardy clauses of the state and federal constitutions. State ex rel. J.T., No. A-0595-12T1 (Jul. 11, 2013).

 

The juvenile defendant was accused of performing acts of fellatio on another minor and was charged with the juvenile equivalents of first-degree aggravated sexual assault and third degree endangering the welfare of a child. The judge ruled, however, that one of the prosecution’s key pieces of evidence—a videotaped interview with an 11 year old child who knew about the incident—was inadmissible because it lacked trustworthiness. Without this evidence, the judge granted a directed verdict in the defense’s favor and dismissed the complaint. The prosecution appealed.

 

Double jeopardy prevents defendants from being retried for the same offense after being acquitted, but the prosecution argued that double jeopardy didn’t apply in this case because the dismissal was based on what should have been a pre-trial evidentiary ruling. The Appellate Division did not agree. As the court explained, the evidentiary ruling was decided during the trial and after jeopardy had attached. The trial judge, moreover, had indicated to the attorneys when the trial commenced that the evidentiary ruling would be made during the trial, not as a pre-trial procedure. The prosecution did not object to this framework, and having failed to do so then, it could not later attempt to fix its mistake by claiming that double jeopardy didn’t apply. For these reasons, the court rejected the prosecution’s appeal and affirmed the dismissal in favor of the juvenile defendant.

 

For more information about sexual assault charges in Monmouth County, call the Law Offices of Palumbo & Renaud at 908-337-0753 or visit the law firm website at www.palumbo-renaud.com.

Sep192013

New Jersey Supreme Court throws out evidence in child sex abuse case due to violation of state wiretap law

The New Jersey Supreme Court held in July that key evidence in a child sexual abuse case had to be suppressed due to a violation of the state’s wiretap laws. The statutory procedure for obtaining prosecutorial approval before placing a wiretap had to be strictly followed, the court concluded, and any wiretap evidence collected without such prior approval would be rendered inadmissible. State v. K.W. (Jul. 11, 2013).

 

The defendant in State v. K.W. was charged with multiple counts of aggravated sexual assault and child endangerment in relation to the sexual abuse of his daughter over a two-year period. She reported the abuse when she was 13 and was referred to the Assistant Essex County Prosecutor, who proposed placing a wiretap on her mother’s phone line to gather evidence. The Assistant Prosecutor then sought approval for the wiretap from an authorized designee of the County Prosecutor, as required under the wiretap statute, and obtained an authorization from his supervisor. He was mistaken about his supervisor being an authorized designee, however, and didn’t obtain the necessary prosecutorial approval until after the wiretap had already been concluded.

 

In determining whether to suppress the wiretap evidence, the court looked to the history of the wiretap statute and the legislature’s emphasis on privacy and the need to prevent law enforcement from having unfettered discretion to spy on telephone conversations. With these concerns in mind the court found that the statute had to be strictly applied, with any deviation from the prior approval requirement resulting in suppression of the evidence. The wiretap evidence against K.W. had to be thrown own, accordingly, despite the fact that it had been collected in good faith. The prosecution could still rely on evidence collected under a search warrant for the defendant’s property, however, because it had been obtained independently of the wiretap.

 

For more information about fighting sex crimes charges in New Jersey, call the law offices of Palumbo & Renaud at 908-337-7353.

Sep092013

Gunnison Beach photography problems raise concerns about child pornography and privacy

With cellphones and tablets as ubiquitous as they are today, nude patrons at Gunnison Beach have to either accept that they may be photographed or take a variety of precautions to shield themselves from prying lenses, such as wearing large hats or setting up screens around their beach sites. As New Jersey’s last remaining clothing-optional beach, voyeurism certainly isn’t a new problem at Gunnison Beach, but the digital age has made it incredibly easy for surreptitious photographers to take footage of nude adults—and sometimes children—and then distribute it electronically without their knowledge or permission.

 

Unfortunately for Gunnison Beach regulars, NJ.com reported in 2011 that sneaky “photographers have the law on their side.” Criminal charges for lewdness or child pornography are applicable only to a small portion of photographers, and invasion of privacy crimes are mostly inapplicable due to the public nature of the beach.

 

Lewdness and Gunnison Beach Photographers

New Jersey law defines lewd acts as the exposing of a person’s genitals, for sexual motivations, under circumstances where the person is likely to be observed by other people and cause them alarm or dismay. The offense is classified as a disorderly persons offense, which carries penalties of up to 6 months in prison, but it can be upgraded to a fourth degree crime, which carries penalties of up to 18 months in prison, if the lewd acts are committed in front of a child under the age of 13. N.J.S.A. 2c:14-4.

 

In the context of photography at Gunnison Beach, lewdness charges would only apply if a photographer exposed himself while on the beach, whether by flashing, masturbating, engaging in sexual intercourse, etc. Police could arrest the photographer in such cases and take him into custody, temporarily preventing him from taking any more pictures. If convicted, a more long term restriction prohibiting him from visiting nude beaches could then be included in his probation or parole.

 

Child Pornography and Gunnison Beach Photographers

Photographing or filming a child under 16 years of age in a sexual act or in the simulation of a sexual act is a second degree crime in New Jersey, unless the photographer is the child’s parent or guardian, in which case the offense becomes a first degree crime. In addition to a possible sentence of up to 10 years for a

second degree offense or 10-20 years for a first degree offense, anyone convicted of producing child pornography is required to register as a sex offender and comply with the state’s sex offender monitoring and reporting laws. N.J.S.A. 2c:24-4. Federal child pornography laws are somewhat broader than New Jersey’s and protect children up to the age of 18 rather than 16. The sentence for federal child pornography production is 5-20 years, unless the defendant has certain prior sex offenses on his record, in which case the sentence is extended to 15-40 years.

 

As with lewdness, photographers at Gunnison Beach could only be arrested for child pornography in the limited circumstances proscribed by the statute. Taking non-sexual photographs of children, for example, might not be covered. Similarly, provocative pictures of young-looking but over-age adults might not implicate the child pornography statute, although there is a presumption under the law that such young-looking persons, when depicted in pornographic materials, are deemed to be children under the legal age. To overcome this presumption, a defendant would have to provide specific evidence of the age of the subjects in the allegedly pornographic material. Gunnison Beach photographers who rely on hidden cameras would likely have some difficulty identifying the subjects in their photos and obtaining this type of evidence.

 

Invasion of Privacy Charges and Gunnison Beach Photographers

Where lewdness and child pornography charges fall short in addressing the issue of surreptitious photographers at Gunnison Beach, New Jersey’s invasion of privacy law almost provides a solution. The law makes it a third degree crime to photograph, film, or otherwise record the image of another person, without his or her consent, when engaged in sexual activity or when his or her intimate parts are exposed. However, the law only applies in circumstances in which a reasonable person would not expect to be observed, and because Gunnison Beach is public, patrons have no such expectation of privacy. N.J.S.A. 2C:14-9.

 

Another possible option for legal recourse involves the civil tort of invasion of privacy. New Jersey courts allow plaintiffs to file charges for money damages if their photograph or likeness is appropriated and exploited commercially without their consent. Gunnison Beach patrons could bring such claims if their pictures were distributed through the internet or any other medium for commercial profit, but they would first have to become aware of the image’s commercial exploitation and find the responsible parties. This type of litigation can be complicated and may even exacerbate the invasion of privacy by generating negative publicity, but it can also be a very lucrative solution under the right circumstances.

 

Contact a Gunnison Beach Public Photography Attorney

For more information about the legality of photographing Gunnison Beach patrons, or to schedule a free and confidential meeting to discuss any charges you’re facing for taking photographs at Sandy Hook, call me, Anthony N. Palumbo, Esq., at 1-866-664-8118. As Monmouth County Lewdness and Sex Crimes Defense Lawyer with more than 35 years of experience, I’ll be able to go over the legal provisions involved in your case, the options for resolving your charges, and the best strategies to protect your rights and reputation during the process.

 

 

 

Aug282013

Fourth-Degree Lewdness vs. Third-Degree Child Endangerment

Under New Jersey law, a person commits lewd acts when he exposes his genitals for a sexual purpose and “he knows or reasonably suspects [that he] is likely to be observed by other non-consenting persons who would be affronted or alarmed.” Lewdness is normally a disorderly persons offense with a maximum penalty of 6 months in prison, but when lewd acts are committed in front of a child under the age of 13, the offense becomes raised to a fourth degree crime with penalty of 6-18 months in prison. N.J.S.A. 2c:14-4.

 

In addition to carrying more significant penalties than run-of-the-mill lewdness offenses, crimes that are charged as fourth degree lewdness also tend to be charged as third degree child endangerment. This offense, which carries even steeper penalties than fourth degree lewdness (3 to 5 years in prison for child endangerment, as opposed to a maximum of 18 months for lewdness) occurs when a person engages in sexual conduct “which would impair or debauch the morals of a child” under the age of 16. N.J.S.A. 2C:24-4.

 

The New Jersey Supreme Court addressed the relationship between fourth degree lewdness and third degree child endangerment in State v. Hackett, 166 N.J. 66 (2001). The case involved a man who was charged with both offenses after repeatedly standing nude in the front window of his house, in full view of several children at a school bus stop.

 

The New Jersey Supreme Court affirmed the defendant’s convictions on both counts. Although the court cautioned that a conviction for fourth degree lewdness won’t automatically sustain a conviction for third degree child endangerment, the court found that the same evidence could be used to prove both offenses, so long as the distinct elements of each crime were satisfied. Disagreeing with the lower court, which had found the defendant’s “mere nudity” insufficient to prove the child endangerment charge, the court found that the jury had a thin but sufficient basis for its guilty verdict. “This was not a case involving a child’s stolen glimpse of nudity,” the court explained, “but instead… repeated instances when the defendant allowed himself to be viewed naked, through an unobstructed window, by girls who were age thirteen and under.” Attracting the children’s attention in such a flagrant and repetitive way, the court found, could have been viewed by the jury as evidence that the defendant sought to debauch the children’s morals. As the court emphasized, the question was not whether the children’s morals were actually debauched, but whether the defendant’s actions amounted to sexual conduct that was likely to debauch the children’s morals.

 

For more information about lewdness or child endangerment charges, or to schedule a free legal consultation in your case, call me, Anthony N. Palumbo, Union County Criminal Defense Lawyer, at 908-337-7353.

 

Aug052013

Gunnison Beach Topless Sunbathing: Illegal for Women at Most New Jersey Beaches

With the exception of Gunnison Beach, all of New Jersey’s public beaches prohibit nudity. More often than not, these nudity restrictions apply to female breasts as well as to more intimate body parts, even though many women prefer to sunbathe topless and many people find the practice non-offensive.

 

Being arrested for topless sunbathing is no day at the beach, but a New Jersey Public Nudity Defense Attorney can help you understand the legal process you’re facing, how to move forward, and the best ways to protect your rights and reputation. To schedule a free and confidential legal consultation in your case, call me, Anthony N. Palumbo, Monmouth County Criminal Defense Lawyer, at 908-337-7353.

 

Public Nudity Ordinances vs. Lewdness Charges

New Jersey municipalities have the authority to enact their own public nudity laws banning women from exposing their breasts in public and providing penalties such as fines and community service. While local public ordinances may come into play, however, New Jersey’s lewdness law generally won’t be implicated in cases brought against topless women. That’s because the statute defines “lewd acts” very specifically as “the exposing of the genitals,” without any inclusion of other possibly-erotic body parts such as breasts. The statute also provides that lewd acts must have a primarily sexual motivation, and topless sunbathing, which has various non-sexual motivations (e.g., comfort, prevention of tan lines) will rarely meet this test.

 

No Equal Rights to Sunbathe Topless

Although the New York courts have held that women have a right to appear topless wherever men can do so, People v. Santorelli, 80 N.Y.2d 875 (1992), similar equal protection arguments were rejected by the New Jersey Appellate Division in State v. Feeley, 2011 N.J. Super. Unpub. LEXIS 2402 (Sep. 14, 2011).

 

The defendant in State v. Feeley was arrested when she removed her bathing suit top while sitting on a public beach in Monmouth County. She was charged with violating the borough’s public nudity ordinance and was taken to police headquarters, where she was processed and given a shirt to wear. She abandoned this shirt shortly after being released, however, and was arrested again after the police received a call about a topless woman walking near the station. (Her shirt was later found hanging from the door of the station building.)

 

At trial, the defendant argued that the public nudity ordinance violated her rights to equal protection because men were allowed to appear topless at the public beach but women were not. The Appellate Division rejected this argument and affirmed the $750 fine in her case, relying on an earlier New Jersey case, State v. Vogt, 341 N.J. Super. 407 (2001). As the court explained in that case, there is no constitutional right in New Jersey for a woman to appear topless on a public beach, and restrictions on the exposure of the female breast, even if based on gender distinctions, are supported by the important governmental interest in safeguarding the public’s moral sensibilities.

 

No First Amendment Right to Sunbathe Topless

The First Amendment freedom of speech is another defense sometimes raised in challenges to public nudity laws. In New Jersey, however, Tri-State Metro Naturists v. Lower, 219 N.J. Super. 103 (1987), established that there’s no freedom of expression inherent in the act of topless sunbathing. “While there may be an element of nonverbal expression inherent in nude sunbathing,” the court explained, “its communicative character is not sufficiently distinct to warrant constitutional protection.” The plaintiffs in this case, nudists who had been arrested for being topless in a state park, had succeeded in overturning their convictions under the state’s lewdness law, but their challenges to the local public nudity ordinance did not fare as well. In addition to throwing out their First Amendment challenge, the court rejected their arguments based on the right to privacy, the freedom of association, vagueness, nudity as a protected liberty, state preemption, and state sovereignty over state lands.

 

Exception for Breastfeeding Mothers

One notable but narrow defense to local public nudity laws is available for breastfeeding mothers. Under state law, these women are entitled to nurse their children in any place of public accommodation, resort, or amusement. N.J.S.A. 26:4B-4. While this right may not allow nursing mothers to sunbathe topless under the pretext of breastfeeding, it does allow them to expose their breasts to a larger extent than permitted under many local ordinances.

 

A Public Nudity Defense Lawyer Can Help in Your Case

Despite the reluctance of New Jersey courts to recognize equal protection or free speech challenges to public nudity ordinances, a strong legal defense can still undermine the prosecution’s case by challenging the admissibility of evidence or raising procedural errors. And even if you were caught in the flesh (pun intended), your attorney may still be able to get your charges reduced by negotiating a favorable plea deal.

 

For more information or to speak with an experienced New Jersey Public Nudity Defense Lawyer, contact the law firm of Palumbo & Renaud at 1-866-664-8118. Lead defense attorney Anthony N. Palumbo has nearly four decades of experience handling public nudity and indecent exposure cases, and he’s often able to help clients get their charges reduced to minor violations or even get them dismissed altogether. Palumbo & Renaud also treats their clients’ privacy with the highest level of respect and discretion, taking every precaution to ensure that clients’ reputations are protected from potentially embarrassing charges such as public nudity.