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.

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.

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.

 

 

 

Essex County sex offender entitled to withdraw guilty plea, court holds

An Essex County man who pled guilty to third degree child endangerment charges in 2005 was granted post-conviction relief by a New Jersey appeals court in December. The defendant, Carlton Green, filed for relief after he had completed his 3 year sentence and was civilly committed as a sexually violent predator, claiming that his plea counsel was ineffective for failing to advise him that he faced the possibility of lifetime commitment. The court agreed and held that the initial guilty plea had to be vacated. State v. Green, No. A-1826-11T4 (N.J. Super. Dec. 27, 2012).

 

The record in Green’s case showed that he had acknowledged the risk of being civilly committed during a brief interchange with the judge at his sentence hearing, but his plea counsel did not recollect whether he had actually explained to Green what this meant. Importantly, Green’s signature was also conspicuously absent from the plea form which detailed the possibility of lifetime civil commitment under the Sexually Violent Predator Act and Green testified that he believed he was facing just 3 years in jail.

 

In State v. Bellamy, the New Jersey Supreme Court addressed a claim of ineffective counsel in the context of the Sexually Violent Predator Act and held that “when the consequence of a plea may be so severe that a defendant may be confined for the remainder of his or her life, fundamental fairness demands that the trial court inform defendant of that possible consequence.” In such cases, the failure of either the court or defense counsel to sufficiently explain the consequences deprives the defendant of information which is needed to make a knowing and voluntary plea, and the appropriate remedy is to remand the case and allow the defendant to withdraw the plea.

 

The court found that the Bellamy standard was not met in this case, as the record was “completely barren of any written plea forms that mention” civil commitment and the only time that it was mentioned during Green’s hearing was a “stray comment of the judge who oversaw the plea allocution.” The court also emphasized that under Bellamy, Green did not need to show that the result of the case would have been different had he been aware of the consequence of possible lifetime commitment; rather, “no additional showing beyond a lack of knowledge is required, which was clearly provided through Green’s uncontradicted testimony on remand.”

 

If you’ve been charged with a sex offense in New Jersey, the last thing you need is a lawyer who doesn’t know how to defend you or who doesn’t care enough to help you understand your case. The results can be disastrous, as this case demonstrates, with wasted years of incarceration and appeals. The much better route is to consult with an experienced sex crime defense lawyer at the earliest possible date so that you can prevent major errors from occurring and make sure that you’ve chosen the best legal strategy to protect your rights and reduce your penalties.

 

 

 

 

 

 

 

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.

SEX CRIMES – MIDDLESEX – SEXUAL ASSAULT

A Middlesex man was arrested on charges he had a two-year tryst with a 14-year-old township girl. Authorities said the man. a tattoo artist, coerced sexual favors from the girl in exchange for giving her a free tattoo. He has been charged with multiple offenses including three counts of statutory sexual assault and four counts of sexual assault.

Consensual sex with a minor who is too young to give her consent to having sex. The age of sexual consent is in New Jersey is 16. This is a strict liability offense, meaning it is not relevant whether or not an individual knew he was having sex with a minor. The act in itself is enough to result in a conviction. In New Jersey, the crime of statutory rape is charged as either sexual assault or aggravated sexual assault, depending on the age of the victim. Clearly, the younger the victim, the greater the chance of being charged with aggravated sexual assault as it carries an even stiffer sentence.

A conviction for statutory sexual assault could result in a prison sentence of up to 10 years. For aggravated sexual assault, the maximum prison sentence is 20 years. Additionally, defendants convicted of either of these crimes must register as sex offenders under Megan’s if the victim was under the age of consent. This law requires you to give your name, whereabouts and a list of your crimes to the local community. Additionally, a conviction of aggravated sexual assault requires registration for life.

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. Visit my website, www.palumborenaud.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 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 1-866-664-8118 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.

 

 

 

 

 

 

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

Ocean County man arrested for sexually assaulting two young girls

A Jackson Township man was arrested in June for sexually assaulting two girls under the age of 13. The man, who allegedly engaged in oral sex and vaginal penetration with the victims, was charged with first degree aggravated sexual assault, second degree sexual assault, and second and third degree endangering the welfare of a child.

 

Committing an act of sexual penetration with a child who is less than 13 years old constitutes first degree aggravated sexual assault and is punishable by 10 to 20 years in prison. As in this case, however, separate charges can also be brought for second degree sexual assault, which carries a penalty of 5 to 10 years in prison, and for child endangerment, which is punishable by 3 to 10 years. Additionally, convicted child sex offenders have to comply with the registration and reporting requirements of Megan’s Law.

 

New Jersey courts are tough on child sex abusers and just being accused of a sex crime can ruin your reputation and alienate you from your friends and family. You don’t have to go through this difficult process alone though–an experienced criminal defense attorney can help you to understand the legal stages ahead of you and fight to get you the lightest penalty possible. If you need a sex crimes defense attorney you can contact me, Anthony N. Palumbo, at 1-866-664-8118 to schedule a free, no-obligation consultation. Together we’ll discuss the circumstances of your case, possible defenses, and your chances for getting the charges dropped.

Essex County prosecutors accuse teacher of sexual abuse

A former “Teacher of the Year” from West Orange was recently accused of sexually abusing a 15 year old boy in her English class. The teacher, who former students say was “flirtatious” and prone to inappropriate behavior, was charged with first degree aggravated sexual assault, second degree sexual assault, and endangering the welfare of a child.

 

Sexual assault is a second degree crime in New Jersey and is punishable by 5 to 10 years in prison, severe fines, and inclusion in the state’s sex offender registry. However, the charges can be upgraded to first degree aggravated sexual assault in situations such as this one where the actor had supervisory authority over the victim. First degree aggravated sexual assault carries penalties of up to 20 years in jail upon conviction and requires lifetime registration as a sex offender.

 

If you’ve been accused of a sex crime in Essex County or anywhere else 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.

 

I am Anthony N. Palumbo, a partner at the firm of Palumbo & Renaud, and you can schedule a free and confidential consultation with me by contacting me online www.palumbo-renaud.com or at 908-337-7353.