Double jeopardy protected sex offender from additional penalties omitted from his sentence but required by law

ANTHONY N. PALUMBO – SEXUAL ASSAULT LAWYER

A case decided by the New Jersey Supreme Court this fall held that a judgment of conviction for sexual assault could not be amended, after the defendant had served his sentence, to fix an error in the original sentence that had omitted legally-mandated lifetime community supervision requirements. Even though the original sentence was invalid due to the missing provisions, jeopardy attached as soon as that sentence was completed and the constitution prohibited the court from imposing additional penalties. State v. Schubert, 212 N.J. 295 (Oct. 22, 2012).

 

The defendant in Schubert pleaded guilty to second degree sexual assault in 1996 and was discharged from probation after completing his sentence in 2003. In 2007, however, the chairman of the parole board discovered that the original sentence had omitted mandatory lifetime community supervision requirements and at his request, the trial court entered an amended judgment in 2008 which added the missing provisions. The defendant then filed a petition to vacate the amended judgment, contending that the trial court had no jurisdiction to amend the sentence after it had been fully completed and that doing so violated the double jeopardy clause of the FIfth Amendment.

 

Although the double jeopardy clause is best known for protecting individuals from being prosecuting for the same offense after an acquittal, it also protects defendants from receiving multiple punishments for the same offense. The first factor to consider in determining whether an amended judgment amounts to this sort of unlawful multiple punishment is whether the additional sentence provisions are punitive or remedial: if they are remedial, then double jeopardy principles do not apply, but if they are punitive the court must then determine whether they constitute an unlawful additional penalty or merely a correction to an illegal sentence.

 

Applying these rules in Schubert, the court agreed with the defendant that community supervision for life is punitive in nature, not remedial, because an individual who is subject to community supervision for life has severely restricted freedoms. For example, he must receive permission from his parole officer before choosing where to reside and before commencing employment, and he can also be subject to random drug testing, yearly polygraphs, curfews, and restrictions on internet access, among other conditions. Moving to the second part of the double jeopardy inquiry–whether the amended judgment was an illegal additional penalty or an acceptable correction–the court explained that an unauthorized sentence can generally be corrected at any time before the sentence has been completed, but not after the defendant has served his term, as in this case.

 

For more information about New Jersey’s sex crimes laws or to schedule a free legal consultation, contact the law offices of Palumbo & Renaud at 908-337-7353.

 

Sexual Assault Charges in West Orange, Essex County

The Owner of a Popular West Orange Bar was Charged with Sexual Assault and Endangering the Welfare of Children in Essex County.

New Jersey News reports the owner of a popular bar in West Orange is in Essex County jail after being charged with sexual assault and child endangerment of two 15-year-old boys.  The bar owner, 49, of West Orange, and his wife, were arrested at the bar he owned, Halligan’s Public House.  The man was charged with multiple counts of sexual assault and endangering the welfare of a child.  He is being held at the Essex County Jail on $400,000 bail with no 10 percent option. The investigation into the bar owner and his wife began when one victim, now an adult, approached authorities.  West Orange police and the Essex County Prosecutor’s Office are jointly investigating the charges.

A conviction for sexual assault and endangering the welfare of a child, often called statutory rape, has severe criminal consequences.  Statutory rape is consensual sex with a minor who is too young to give his or her consent to having sex.  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.  It is not a defense that the accused was not aware of the victim’s age when engaging in sexual activity.

A conviction for 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, people convicted of either of these crimes must register as sex offenders under Megan’s Law. 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 Attorney, 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.palumbo-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 1-866-664-8118 for a free consultation.

Man Convicted of Attempted Sexual Assault in Newark, Essex County

A Newark Man was convicted after he attempted to lure an Undercover Cop he thought was a 12 Year Old Girl.

Local News reports a Newark man was convicted in Essex County of attempted sexual assault with who he thought was a 12-year-old girl he lured on the Internet and who he drove to meet at a Woodland Park store parking lot.  The Nigerian native was found guilty of luring, attempted sexual assault and attempted child endangerment by a jury. He faces as much as 30 years in state prison.

Because of the nature of the conviction, the man in this case will likely have to register as a sex offender under Megan’s Law in New Jersey. An attempt to commit sexual assault of a child under 16 will place a convicted individual on Megan’s law if the conduct was characterized by a pattern of repetitive, compulsive behavior.  Here, the circumstances indicate such a pattern of behavior through defendant’s repetitive use of the internet to solicit.

In New Jersey, Megan’s law sex offender registry requires convicted sex offenders to provide information to the local community about what they look like, where they live, their past crimes, and even the vehicle they drive so the community can be aware of their presence.  Offenders are designated tiers based on the severity of their actions.  A person may be ranked as Tier 1 (low risk), Tier 2 (moderate risk), or Tier 3 (high risk offender).  The risk assessment refers to the likelihood that the individual will commit another similar crime.  An experienced Essex County Sex Crime Defense Attorney can fight for the rights of a convicted individual to help lower their tier designation at status conference meetings.

A skilled defense attorney can help reduce one’s Megan’s Law sex offender tier designation.  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, for more information on New Jersey Crimes Against Children Lawyer. 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 1-866-664-8118 for a free consultation.