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.

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.

 

 

 

A Millstone Man was Charged in a Child Prostitution Scheme after Monmouth County Police Discovered he had Engaged in Relations with a Minor

A Millstone man was arrested by Monmouth County investigators after allegedly taking part in child prostitution. The man faces charges of second-degree sexual assault and third-degree endangering the welfare of a minor in connection with having sex with the 15-year-old boy. The man was accused of having sex with the boy at his Millstone residence. He was arrested at his home by State Police, and released after posting $250,000 full bail. Because of the age of the victim, the accused in this case faces significant criminal penalties.

If convicted, the defendant would likely be forced to register under Megan’s Law as a child sex offender. In New Jersey, Megan’s law sex offender registry requires convicted sex offenders to provide information to local police about what they look like, where they live, type of car they drive and their past crimes so the police can be aware of their presence. Police then distribute this information based on the prescribed offender level of the registrant to appropriate community officials. The higher the level of offender (one through three with three being the highest tier), the more notice will be provided to the community including local school officials and potentially neighbors within a two block radius. Importantly, this information must be distributed by police according to certain procedures so as not to violate the registrant’s rights to privacy. Once on Megan’s List, it is possible to be designated a reduced tier over time through status conferences with county prosecutors. Good behavior over a prolonged period of time as well as compliance with counseling and other programs often help offenders in reducing their Megan’s Law tier designations. After a prolonged period of time, it is even possible to be removed from Megan’s Law completely.
I, Anthony N. Palumbo, a New Jersey Criminal Defense Lawyer, understand the workings of the law and can properly defend accused persons in sexual assault offenses as well as those who
have been convicted of solicitation of a prostitute. Visit my website, www.palumho-renaud.com for more information. I have been defending individuals against sexual assault charges, including those involving minors, in New Jersey for almost four decades. As a longstanding member of the legal community, a former prosecutor, and a current public defender, I can give you an honest assessment of the penalties you face and the best possible avenues of relief.

If you would like to discuss your case, freely and confidentially, with an experienced attorney at no obligation, contact me at 908-337-7353 for a free consultation.

New trial ordered in sexual abuse case due to lack of physical evidence and cumulative effect of trial errors

The New Jersey Appellate Division ruled in November that a Monmouth County man sentenced to 10 years in prison for sexually assaulting his daughter was entitled to a new trial. Although no single error standing alone warranted this reversal, the court was satisfied that a new trial was called for based on the lack of substantial physical evidence and the cumulative prejudicial impact of several trial errors. State v. M.M., 2012 N.J. Super. Unpub. LEXIS 2474, No. A-2747-09T1 (N.J. App. Div. Nov. 8, 2012).

 

The first evidentiary ruling challenged by the defendant involved hearsay statements made by the daughter’s biology teacher and vice principal. Generally speaking, the rule against hearsay prohibits witnesses from testifying about statements made by other people, as such testimony is often unreliable or unverifiable. An important exception, however, is when the hearsay statement is offered to show the effect of the statement on the listener, not as proof that the statement was true. The prosecution invoked this exception to introduce testimony from the vice principal that the defendant’s daughter told him that she did not want to go home, with the prosecution claiming that the statement was not offered to prove whether she wanted to go home or not, but rather to show that the conversation occurred and the effect it had on the vice principal. Similarly, the prosecution argued that the biology teacher’s testimony regarding a conversation she overheard between the daughter and another girl was offered to show its effect on the teacher, namely concern, and not to prove that what the daughter told the other girl was true. Even if these statements qualified for the hearsay exception, the court agreed with the defendant that they were inadmissible because they were not relevant to any material fact in the trial.

 

The court also found that the prosecutor erred by stating during summation that the daughter “was not lying” and by telling the jury that all of the other witnesses believed her. While finding it unlikely that these comments, by themselves, created any significant prejudice against the defendant, the court still emphasized that it was inappropriate for a prosecutor to vouch for witnesses, attempt to bolster their credibility, or express personal beliefs as to the truthfulness of their testimony.

 

The defendant also contended that it was inherently prejudicial to use a screen to shield his daughter from view during her testimony, although the prosecution claimed that using a screen was an appropriate way to balance the defendant’s right to a neutral and public trial against the need to protect his daughter from undergoing psychological and emotional trauma during her testimony. The court accepted that screening might be appropriate in certain cases, but found that it was inappropriate in this case because there was no evidence that the daughter would have been unable to testify in open court, particularly in light of the fact that the screen shielded her only from spectators and not from the defendant or the jury.

 

Considering the effect of these errors together, along with the lack of direct evidence, the court concluded that a new trial was necessary. As the court explained, the combined impact of allowing irrelevant hearsay, inappropriate vouching, and unnecessary screening “was clearly capable of producing an unjust result.”

 

Trial errors like these can be especially damaging in cases involving child sexual abuse and other highly stigmatized crimes, but a skilled criminal defense attorney can raise objections and prevent prosecutors from introducing irrelevant and prejudicial evidence to the jury. If you’ve been accused of a sex crime and want to ensure that you’re represented by an experienced and aggressive defense lawyer, contact me, Anthony N. Palumbo, at 908-337-7353 to arrange a free and confidential consultation. I have more than 35 years of experience defending clients against sexual abuse charges and I know the best strategies and tactics to protect defendants and get the best results possible.

 

 

 

 

 

 

Online sting operation nabs Monmouth County man for attempted child sex crimes

A Monmouth County man was arrested for attempted child endangerment and attempted luring after engaging in sexually explicit internet chats with a Passaic County sheriff’s officer posing as a 12 year old girl. The man, unaware that his chat partner was a police officer, allegedly asked to meet the girl several times to go camping, to the mall, and horseback riding. On two occasions he also initiated video chats with the officer and exposed his genitals.

 

The offense of endangering the welfare of a child applies when an actor engages in a prohibited sexual act with a child who is less than 16 years old. “Prohibited sexual acts” include not just sexual penetration, but also bestiality, sadism, masochism, oral sex, and the possession, creation, or distribution of child pornography. As a result, the offense encompasses many different types of crimes, ranging from consensual sexual activities between adults and minor children to more egregious cases of child sexual abuse, and the penalties increase along with the severity of those circumstances. To prove charges of attempted child endangerment, as in this case, the state has to prove that the actor took a substantial step in a course of conduct that would have constituted child endangerment if the offense was completed. Attempted child endangerment generally carries the same penalty that would apply had the crime been completed.

 

Luring is a separate crime that occurs when a person attempts to lure or entice a child under the age of 18 into a motor vehicle, structure, or isolated area, or attempts to convince the child to meet or appear at any other place, with a purpose to commit a criminal offense against the child.  Luring is generally a second degree crime and carries a penalty of 5 to 10 years in prison.

 

The use of online “sting operations” to catch child predators has become increasingly common in recent years as sex offenders have learned to use chat rooms, social networking sites, and other online tools to lure minors into sexual situations. These law enforcement operations, however, may be susceptible to challenges of unlawful entrapment if the defendant can prove that the police officer’s conduct would have coerced an otherwise law-abiding individual to commit the crime under similar circumstances.

 

I am Anthony N. Palumbo, New Jersey sex crimes defense attorney, and I’ve represented clients against charges of luring and solicitation of minors for nearly 40 years. If you’ve been arrested as part of an online sting operation and believe that you were a victim of entrapment, contact me at  908-337-7353 to discuss your case, confidentially and at no cost. It’s possible that you could have other defenses available in your case, such as constitutional claims or evidentiary challenges, and even if you were caught red-handed, you might still be able to negotiate a favorable plea deal and have the charges reduced.

Monmouth County man arrested on burglary and sexual assault charges

Matawan police recently arrested a suspect accused of sexually assaulting one woman and attempting to sexually assault another woman after breaking into their apartments. The Monmouth County man was charged with two counts of burglary and one count each of attempted sexual assault, aggravated sexual assault, and criminal restraint.

 

Aggravated sexual assault is a first degree crime, punishable by 10 to 20 years in prison, and includes cases where the actor commits an act of sexual penetration and the offense is committed during the commission or attempted commission of a robbery, kidnapping, homicide, aggravated assault, burglary, arson, or criminal escape. It also constitutes aggravated sexual assault if the actor was armed with a weapon and threatened to use it against the victim or if the offender used physical force or coercion and inflicted severe personal injury on the victim.

 

Source: Matawan man faces burglary, sexual-assault charges, The Asbury Park Press

Monmouth County man denied new trial in statutory rape case

The New Jersey Appellate Division ruled in August that a Monmouth County man who was convicted of third degree endangering the welfare of a child was not entitled to a new trial. Although the defendant argued that several comments made by the prosecutor and witnesses were prejudicial and denied him a fair trial, the court held that the trial judge alleviated any prejudice by giving appropriate instructions to the jury to disregard the statements.

 

The defendant in this case was accused of having consensual sex with a 15 year old girl, and while he lost his bid for a new trial on the charges of third degree child endangerment, he was found not guilty the charges of second degree sexual assault. Third degree endangering the welfare of a child, which carries a penalty of 3 to 5 years in prison, applies broadly to instances where a person engages in sexual activities with a child under the age of 16. Second degree sexual assault, a more serious charge usually applied to instances of non-consensual sexual penetration, is punishable by 5 to 10 years in prison.

 

If you’ve been accused of a sex crime in New Jersey, contact a lawyer immediately to discuss your case and the chances for having your charges reduced or dismissed. A skilled criminal defense lawyer will help you understand the complexities of the trial process and fight for your right to a fair trial throughout the ordeal.

If you have any questions call me at 908-272-9700 or email anplaw@yahoo.com

Police arrest two men for prostitution at Monmouth County hotel

Two men were arrested for prostitution earlier this month after allegedly engaging in sexual acts at a Tinton Falls hotel for $200. They were charged with engaging in prostitution, which is a disorderly persons offense, and with promoting prostitution, a third degree crime.

 

Prostitution is defined in New Jersey as “sexual activity with another person in exchange for something of economic value, or the offer or acceptance of an offer to engage in sexual activity in exchange for something of economic value.” Engaging in prostitution is generally a disorderly persons offense, which carries a penalty of up to 6 months in jail, but for second and subsequent offenses the charge is increased to a fourth degree crime, which  is punishable by up to 18 months in jail.

 

Third degree promoting prostitution, as charged in this case, is punishable by a sentence of 3 to 5 years in prison. The offense includes:

  • owning, controlling, managing, supervising or otherwise keeping a house of prostitution or a prostitution business;
  • procuring an inmate for a house of prostitution or procuring a place in a house of prostitution for one who would be an inmate; or
  • encouraging, inducing, or otherwise purposely causing another to become or remain a prostitute.

 

Other types of promoting prostitution, such as soliciting a person to patronize a prostitute or procuring a prostitute for a patron, are fourth degree crimes punishable by up to 18 months in jail.

 

Convicted Monmouth County sex offender arrested on new sexual assault charges

A Monmouth County man was recently accused of sexually abusing a 15 year old boy and is being held on second degree aggravated sexual assault and third degree child endangerment charges. He previously served 4 years of an 8 year sentence for aggravated assault and aggravated sexual assault, having been released from prison in 2010.

 

Committing an act of sexual penetration with a minor constitutes second degree child sexual assault and is punishable by 5 to 10 years in prison. Certain aggravating factors, however,  such as the use of force or coercion, can raise the crime to first degree aggravated sexual assault, which is punishable by 10 to 20 years imprisonment.

 

People accused of child sexual assault may also be charged with additional offenses, such as endangering the welfare of a child. Third degree child endangerment, which carries a penalty of 3 to 5 years in prison, includes situations where a person engages in prohibited sexual acts with the child, such as intercourse, oral sex, masturbation, or other types of sexual conduct.

 

In addition to imprisonment, a person who is convicted of a child sexual abuse crime will also be required to register as a sex offender under Megan’s Law. Being convicted of aggravated sexual assault or for more than one sex offense, moreover, renders an offender ineligible for removal from Megan’s Law.

 

If you’ve been charged with child sexual assault or child endangerment in Monmouth County or anywhere else in New Jersey, I urge you to seek legal advice immediately. My name is Anthony N. Palumbo, and I am a criminal defense attorney with more than 35 years of experience. Contact me today for a free initial consultation through the email form on my website or at 1-866-664-8118.

Woman arrested for prostitution at Monmouth County motel

An Asbury Park woman was arrested for prostitution at a Monmouth County motel, according to an article in the Asbury Park Press. The woman, who has several other outstanding warrants, was taken into custody at the Monmouth County Jail after failing to post bail.

 

Prostitution is defined in New Jersey as “sexual activity with another person in exchange for something of economic value, or the offer or acceptance of an offer to engage in sexual activity in exchange for something of economic value.” Soliciting someone to engage in prostitution is generally a fourth degree crime, punishable by up to 18 months in prison, but soliciting a person under the age of 18 is a third degree crime and carries a penalty of 3 to 5 years in prison.

 

If you’ve been charged with a sex crime in Monmouth County or anywhere else in New Jersey, you need an experienced defense lawyer who will press every legal advantage and fight for your rights throughout the entire judicial process. Don’t wait until it’s too late to fight your charges—consult with an attorney as soon as possible. I am Anthony N. Palumbo, New Jersey Criminal Defense Attorney, and to learn what I can do to eliminate your charges or reduce your fines, contact me for a free and confidential consultation through the email form on my website or at 1-866-664-8118.