New Jersey Criminal Defense Attorney Blog | Ocean County Sex Crime Lawyer | Toms River Criminal Defense Law Firm

Is a New York district attorney too lenient on sexual abuse allegations for some?

2012-05-17T06:14:22Z

Sex offenses in some ultra-Orthodox communities in New York are seen as a community matter in which the police should not play a role. Some advocacy groups are arguing that one district attorney shares these views. Groups are criticizing Brooklyn district attorney Charles Hynes for failing to pursue cases of sexual abuse in ultra-Orthodox communities and for being too lenient on accusations against rabbis and other members of the community.

]]> The district attorney grew up in area with a high population of ultra-Orthodox Jews. During his career, his connections with them has led to votes that allowed him to win public elections.

In response to criticism, the DA founded an outreach group to help abused children in the ultra-Orthodox community. According to their office, it has had great results, but others in the community are more skeptical.

One member of the ultra-orthodox community was charged with 24 counts of sex offenses after accusations of groping and raping young girls, but even with a handwritten confession he did not receive any jail time. A rabbi who taught at a Yeshiva was sentenced to three years probation on a misdemeanor charge despite years of allegations of sexual abuse.

These types of cases, combined with the district attorney's seemingly complacent attitude towards the wishes of the ultra-Orthodox community, has sparked outrage from the victims, their families and victims' rights groups.

One rabbi informed the district attorney that before allegations of sexual abuse would be reported to the police, they first had to be confirmed by a rabbi, and as of yet, Mr. Hynes has shown no public opposition to this community rule.

Mr. Hynes held a Hanukkah party attended by many ultra-Orthodox rabbis, religious leaders and a few victims' rights advocates. One advocate observed that with the influence the rabbis had on the district attorney, they would continue to be able to make such rules.

Source: The New York Times, For Ultra-Orthodox in Abuse Cases, Prosecutor Has Different Rules, by Ray Rivera and Sharon Otterman, May 10, 2012

Ex-cop sentenced to 75 years for predatory sexual assault in New York

2012-05-14T14:06:15Z

An ex-cop was sentenced to the maximum term for sexually assaulting a schoolteacher who was on her way to work. Michael Pena, who had been working as a law enforcement officer for three years at the time of the attack, was convicted of predatory sexual assault, among other charges, and was sentenced to 75 years to life for his crimes.

The school teacher was on her way to work when Pena, after a night filled with drinking, attacked her. Threatening her with his law police-issued gun, he forced her off of the street into an apartment. There, the woman claims she was raped by the former officer.

]]> While Pena admitted the attack, he denied the rape. The jury did not come to a decision on the rape count, and the District Attorney has yet to announce whether it will retry Pena on the undecided rape counts.

The ex-cop was arrested at the scene after a resident of the apartment building where the attack occurred reported the incident to the police. Pena alleged that he did not remember the night due to his intoxication, but the judge found that his use of evasive tactics once the police arrived along with his actions recorded by surveillance videos demonstrated his knowledge of the crimes committed.

Pena's attorney said he may appeal the sentence, claiming that maximum sentence was unwarranted in this situation, the New Jersey Herald reported. The prosecutor, along with a local chapter of a women's rights organization thought the 75-year sentence was appropriate given the violent nature of the crime.

Source: New Jersey Herald, Ex-NYC policeman gets 75 years for sex attack, by Jennifer Peltz, May 7, 2012

File-sharing leads to child pornography charges in New Jersey, part two

2012-05-10T14:13:16Z

Peer-to-peer networks expose everyone on the network to unexpected criminal liability and many other risks. The last post discussed what is happening to 27 people from New Jersey who allegedly used peer-to-peer networks (P2Ps) to share child pornography. While P2P users can unknowingly commit many possession and sharing crimes, there are other dangers to P2P use.

Many computers have file-sharing as the default setting, meaning that you have to actively disable it to prevent others from accessing your computer. It is important that you know the dangers of using P2Ps, so you can make informed decisions.

]]> Here are 5 reasons you should disable file sharing on your computer:

As discussed in the previous post, using a P2P network means you could accidentally download illegal material. If you accidentally downloaded child pornography, you are in possession of child pornography and have committed a crime that leads to severe punishments.
When you file-share, you allow others to access your computer. If your computer has confidential documents, such as financial information, complete strangers on your network could access them.
Viruses are also a huge concern. Others have access to your computer and you have access to files other people create. You could unknowingly download a file from someone's computer that has a virus encrypted.
P2Ps could expose you to copyright infringement, as well as criminal charges. Limewire, a well-known file-sharing software company has been involved in multiple lawsuits involving copyright infringement.
When it comes to your constitutional rights, they are limited in file-sharing. Police officers may not need a search warrant to open the files on a P2P network, which means you should be exceedingly careful about what information you put on a P2P and what information you download.

File-sharing leads to child pornography charges in New Jersey, part one

2012-05-07T14:13:37Z

The use of peer-to-peer networks are behind child pornography charges that have been lodged against 27 people in New Jersey. With the potential for 10 years in prison, the charges make it clear that peer-to-peer networks, also known as P2Ps, are more dangerous than they first appear. While P2Ps can be a great way to share information, unknowing users could be not only be guilty of possessing, but of sharing child pornography.

Peer-to-peer networks have lead to numerous lawsuits regarding copyright infringement and distribution of pornography, including cases involving the filing-sharing software company Limewire.

]]> When multiple computers are on the same network, P2Ps allow everyone on the network to access files on all the other computers. This means that if you have confidential information, music, pornography or any illegal documents, everyone else on the network could have access to this information.

Possessing child pornography and sharing or distributing child pornography are criminal offenses. With P2Ps, the risk of accidentally downloading child pornography increases, and a user could be subject to serious penalties for simply using a P2P network. Here is what can happen:

A P2P user places child pornography in a folder to which other network user have access. According to a New Jersey case, that in itself constitutes distribution of child pornography. Once in the folder, everyone else on the network has access to it. Perhaps the file name is not indicative of its content, or perhaps a user downloads the wrong file.

Either way leads to the same result: one of those other users could accidentally download the child pornography file. Once the other user does so, the crime of possessing child pornography is done, whether intentional or not.

Source: NBC 10 Philadelphia, Major Child Porn Bust in NJ, by Jackie Gailey, Apr. 27, 2012

NJ Supreme Court to rule on process for sending teens into adult court

2012-05-03T14:03:00Z

The Campaign for Youth Justice reports that around 250,000 juveniles are tried as adults every year throughout the United States. When teens are tried in adult court, the charges are usually significant - murder, aggravated assault and other violent felony crimes.

]]> In New Jersey, the local prosecutor determines whether to move teenagers into adult court. Who decides whether a youth should be tried in adult or juvenile court has become a matter for the New Jersey Supreme Court to decide. The court heard arguments recently on an issue that an make a huge difference to young people.

The question that the court will decide is whether it is appropriate for a prosecutor to decide the venue where a juvenile will be tried. After all, the same prosecutor's office will also be responsible for trying the case on behalf of the state.

There are several very important differences between adult and juvenile court. Juvenile court protects the identity of the teenager - defendants age 17 and younger. The courtroom is closed and the court records are sealed. In contrast, adult court is public, with all records open for inspection. The penalties in adult court are also harsher than those imposed by juvenile court that stresses rehabilitation rather than punishment.

Judges can overturn a decision to try a child as an adult, but to do so they must determine that the prosecutor abused his or her discretionary powers, and judges in New Jersey are reluctant to do this.

Advocates of reform support giving trial court judges more involvement in the initial decision, about where a juvenile should be tried, rather than ruling on the prosecutor's decision. Additionally, say these advocates, there should be input from both the prosecution and defense sides.

Source: North Jersey.com, "The Record: Juvenile justice," Apr. 29, 2012.

Will New Jersey enact expanded drug court? Stay tuned.

2012-05-01T11:03:00Z

A 31-year-old Tom's River native is hoping to become the poster child for an expanded drug court program. Alan Cotugno has been arrested at least 35 times for drug crimes and related offenses and served about 7 years in prison or jail. He believes that drug court will allow him to get the treatment he needs to conquer his addiction and has written New Jersey governor Chris Christie to tell him so. However, if the legislature and governor cannot agree on a program, Cotugno's opportunity may slip away.

]]> He currently does not qualify for drug court because his most recent offenses included burglary and eluding, offenses not included in current eligibility requirements. In the past, when he might have qualified, he didn't want the opportunity to get clean that drug court provided. However, a bill sponsored by Sen. Raymond Lesniak (D-Union) offers hope to people like Cotugno.

The proposal expands the types of offenses that could make someone eligible for drug court, and that is what Cotugno and inmates like him are hoping for. However, it still might be a stretch for Cotugno, because his long criminal record and years of addiction increase the probability that he would not complete the program successfully.

His situation is complicated by competition between different prosecutors. Cotugno was arrested in Morris County, but later charged with burglaries in Fairfield, Essex and Bergen counties. Bergen County is willing to recommend Cotugno for drug court, but Morris and Essex counties want him to serve time.

A spokesman for Governor Christie noted that under the governor's proposal, Cotugno would probably not be eligible for drug court because of the eluding charge. But Cotugno remains optimistic and believes that, "God's got a plan for me because I'm not dead."

Source: NJ.com, "N.J. inmate is one of many hoping state expands eligibility for drug court," by MaryAnn Spoto, Apr. 29, 2012.

NJ anti-corruption cases encounter problems

2012-04-27T14:03:00Z

The effort to combat perceived corruption among public officials has developed some problems. And several defendants have been acquitted, although their lives are in tatters after lengthy legal battles in federal court. The sting operation, initiated by Gov. Chris Christie when he was U.S. attorney in New Jersey, has created problems for the now-governor as well, who faces allegations that he steered the anti-corruption effort away from Republican officials who later helped him win the gubernatorial election.

]]> The state used an admitted Ponzi schemer, Solomon Dwek, to record hundreds of hours of conversations between him and public and elected New Jersey officials. He presented himself as a real estate developer seeking favorable treatment in return for cash. However, the past of their principal witness was not the prosecution's only problem. In 2010, a judge ruled that the prosecution had unlawfully charged candidates for public office under a law that applies only to already-elected officials. The charges against several of the defendants were dismissed because of this prosecutorial error. Other defendants were acquitted because their actions, while ethically doubtful, were not illegal.

The story is not all bad news for the prosecution: of the approximately 40 cases that have been resolved, around three-quarters have pleaded guilty to charges that included money laundering, extortion and mail fraud. However, this percentage is less than the national average for federal charges. According to the Justice Department, around one in 200 defendants facing federal charges in 2009 was acquitted.

Attorneys who have followed the ins and outs of these cases have said that the new U.S. attorney who took over after Christie left the post for the governor's office has done as well as he could under the circumstances. Having to rely on testimony for Dwek was a problem; a federal judge described him as a "consummate defrauder and an extremely cunning liar."

Source: Huffington Post, "Court setbacks put damper on NJ corruption busts," by David Porter, Apr. 1, 2012.

Corrupt NYPD cop brought down after NJ robbery

2012-04-25T14:03:00Z

In the past two years, the New York Police Department has been under a spotlight. Prosecutors have charged officers with corruption that included planting evidence in drug crime investigations, illegal gun running, holding up drug dealers, and fixing traffic tickets on a routine basis. The department has been under scrutiny for its out-of-town surveillance of mosques as part of its anti-terrorism, with critics charging that these operations constituted civil rights violations.

]]> Several cases have spilled over into New Jersey. A former New York City intelligence unit officer, now in prison, asserted that he had permission to obtain a New Jersey driver's license under his undercover alias. Department officials have been silent on how Kelvin Jones became an undercover officer. However, former unnamed police officials who spoke to reporters said that eventually Jones became more of a liability than an asset to the department's operations. He was alleged to have given protection to drug dealers, receiving narcotics or cash payments in return.

His lifestyle, flashy for someone on a police officer's salary, included a BMW, expensive clothes, owned a condo and paid for his girlfriend's studies. Jones was ultimately demoted to ordinary patrol duties. Although a demotion, his new status still gave him access to NYPD databases and information. And he used what he had learned as an undercover cop to enrich himself.

He was finally brought down by his partners in a scheme to rob a Carlstadt, New Jersey, warehouse that stored high-end perfumes and toiletries. Although Jones employed the strategies he had learned as an undercover cop, such as using burner phones, aliases and out-of-state license plates, his partners rented moving trucks in their own names and used their own credit cards as payment. Moreover, Jones only paid them $2,000 each, half of the amount originally promised. In any event, they testified against him at his 2010 Newark trial.

Jones met the officers, who already had scams underway to rob prostitutes and street dealers, once he was demoted to patrol. Jones believed that street level robbery was not worth the risk - he wanted something big. He eventually brought several current and former officers into his operation, beginning with the successful robbery of a Brooklyn warehouse that stored counterfeit designer clothing. The New Jersey warehouse robbery occurred several months later. Jones is serving a 16-year prison sentence.

Source: ABC News, "Corruption Case Shines Light on NYPD," by Tom Hays, Apr. 22, 2012.

Does a new child protection bill actually help abusers?

2012-04-23T14:03:00Z

A piece of New Jersey legislation purported to protect children may do exactly the opposite. The Child Protection Act (CPA) of 2012 is being criticized by victim advocates as actually protecting sex crime perpetrators and suspects. Some have argued that the bill actually detracts from another, stronger, bill that is also making its way through the legislative process.

]]> According to some, the CPA is actually designed to limit the liability of institutions such as churches, schools and other organizations where children and authority figures come into contact with one another. The other bill includes language that would retroactively eliminate the statute of limitations on child sex abuse cases, making it much easier for adults to sue their childhood abusers. Although the CPA also eliminates the deadline, its language only applies to future cases. Under the proposed CPA, past victims would be out of luck and unable to take legal action. It also eliminates liability for the institution, making only the actual abuser liable. This protects the Catholic Church, school districts and organizations such as Boy Scouts and Girl Scouts, while priests, teachers and troop leaders remain liable.

Opponents of the CPA say that people need time to remember the sexual abuse, understand how it has affected their lives and develop the courage to take action. The sponsor of the CPA, Lou Greenwald (D-Camden), defends his bill saying that it protects children by requiring background checks and training so that abusers and children never meet. Those who prefer the other bill, introduced by Joseph Vitale (D-Middlesex), say that Greenwald's bill leaves thousands of victims with no recourse to justice.

Vitale's bill was reintroduced after it failed to pass during the last legislative session.

Source: N.j.com, "So-called 'Child Protection Act' would protect N.J. abusers, not abused," Apr. 5, 2012.

Prosecutor charged with drug crimes in North Jersey

2012-04-21T14:03:00Z

Defendants in drug cases come from all parts of the community. For example, a prosecutor for North Bergen Township was charged with helping drug traffickers transport marijuana from California to New Jersey and New York.

Marcanton Macri has been a prosecutor in North Bergen Township for 10 years. He was arrested on April 13 and charged with money laundering and facilitating criminal activity. He was released the next day on a $50,000 bond. Law enforcement claims that Macri was the link between the alleged traffickers and a bank manager who changed money for easier transport. Macri was suspended from his township job indefinitely without pay.

]]> The arrest came after a two-month investigation of two alleged traffickers from Edgewater, New Jersey. They were apparently making regular trips from New Jersey to Mendocino, Humboldt and Trinity counties in Northern California - the so-called Emerald Triangle of marijuana growing. They sent packages of high-grade pot from small-town post offices to associates in Edgewater and Brooklyn. Their most recent shipment, approximately 100 pounds with a street value of $400,000,

Macri is alleged to have helped link the two traffickers to a bank manager who provided $100 bills in exchange for smaller bills. Detectives were said to believe that this was done in order to make currency transport less obvious. Macri was charged with possessing or transporting more than $75,000 he knew or should have known was the result of criminal activity. These are second-degree felonies that carry a possible prison sentence of five to 10 years.

Macri, who was admitted to the bar in 1994, has no disciplinary history or ethics complaints against him, according to the New Jersey Office of Attorney Ethics.

Source: The New Jersey Law Journal, "Prosecutor Allegedly Laundered Money For Cross-Country Drug Traffickers," by David Gialanella, Apr. 16, 2012.

If it seems too good to be true, it probably is

2012-04-17T14:03:00Z

A New Castle, Pennsylvania, man looking for a roommate got caught up in an Internet fraud scam and found himself in jail. The scam victim, Scott Tomasello, thought his roommate search was over when a woman calling herself Jessica responded to his online ad. She sent a check for even more than he had asked for, and told him simply to return any money that was not used for the first month's rent and deposit. Tomasello deposited the check and congratulated himself on being so lucky.

]]> However, the woman called Tomasello to offer additional money. At this point the would-be landlord became suspicious. He took the second check to the bank and told them that he suspected it of being fraudulent. Like the first check, it was drawn on a New Jersey-based organization, The North American Olive Oil Association, but was mailed from West Virginia.

Things became stranger still when Tomasello was arrested fkr forgery, theft by deception and receiving stolen property. He could not post bail, so he spent a week in jail before his bail was reduced. All charges were dropped at a preliminary hearing a month after his arrest.

Tomasello is suing a New Castle police sergeant for false arrest, seeking unspecified damages.

The scam that turned his life upside down is a fairly common one. The scam artist sends the victim a false check in payment for something - rent, second hand furniture, gas money for a shared ride - almost anything will do. The check is larger than the amount owed, and the victim is asked to return whatever is left over. In this way the scam artist is able to turn non-existent money into real money.

Source: Pittsburgh Post-gazette, "Scam victim sues for false arrest," by Rich Lord, Apr. 5, 2012.

Are Fourth Amendment Rights Under Siege?

2012-04-16T20:14:43Z

A recent 5-4 Supreme Court decision makes it legal for prison staff to strip-search anyone entering the facility. Many view this as a significant reduction of fourth-amendment rights that protect Americans against unreasonable searches and seizures. This ruling settled a New Jersey case, Florence v. County of Burlington. The plaintiff, Albert W. Florence, was forced to submit to strip searches, including exposure of body cavities, after he was arrested for an unpaid fine.

]]> It later turned out that his arrest and incarceration was a mistake; he had already paid the fine. Even if he had not paid the fine, failure to do so is not a criminal offense in the state of New Jersey.

Florence stated that he was required to open his mouth, lift his tongue, hold out his arms, and lift his genitals. When he was moved to a second facility, he went through the same process again. And Florence is not the only one who has endured this type of invasive scrutiny while in the criminal justice system. Individuals whose "crimes" included walking a dog without a leash, driving a car with an expired license and for peaceful protesting have been subjected to strip searches.

The district court had previously ruled in Albert Florence's favor, but was reversed by the Third Circuit. The Supreme Court upheld that decision.

The dissent, written by Justice Breyer, stated that invasive searches of individuals arrested for minor offenses and non-violent, white collar crimes, were unreasonable under the Fourth Amendment, unless prison authorities have reasonable suspicion that the person has drugs or other contraband on his or her person.

Does this decision mean that the rights of criminal defendants and people convicted of crimes are under seige? Time will tell. But it is worth revisiting the words of the Forth Amendment in the meantime:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. --Fourth Amendment to the U.S. Constitution

Source: Huffington Post, "Strip Search Nation," by David Bromwich, Apr. 11, 2012.

Supreme Court ruling improves rights of defendants

2012-04-12T14:03:00Z

A recent U.S. Supreme Court decision gave defendants a small gift. After a ruling last week, defendants now have a constitutional right to effective legal representation during plea bargain negotiations in criminal cases from assault to investment fraud. The ruling was 5-to-4 in two decisions that gave judges more discretion and authority.

]]> These decisions mean that the old days of deal making in the corridor may become less common. Such deals could come back to haunt not only defendants but also prosecutors and defense lawyers. If a defendant receives poor legal advice and rejects a favorable plea offer as a result, he or she would have legal recourse and could be entitled to a new trial, according to the Supreme Court majority.

This could have far-reaching consequences for the legal system. Because an overwhelming majority of convictions in federal courts are the result of guilty pleas, having even a small percentage of these cases re-tried because of ineffective counsel during plea negations could impose a significant burden on the court system.

Justice Anthony Kennedy, writing for the majority, noted that because the vast majority of cases are decided during negotiations, defendants should have the same right to effective counsel that they have if their cases go to trial. However, he acknowledged that the emphasis on effective counsel during negotiations could lead to unfounded claims, and that such claims could be avoided by requiring offers to be made in writing or in open court, rather than in the hallway outside the courtroom.

Source:New York Times, "Justices' Ruling Expands Rights of Accused in Plea Bargains," Mar 21, 2012.

Police can track you through your cell phone

2012-04-10T14:03:00Z

Although the U.S. Supreme Court ruled in January that police cannot use GPS locator systems to track suspects, it has not directly addressed the issue of cellphones as tracking devices in law enforcement. Many law enforcement agencies use cellphones, some of which have GPS systems, to follow individuals suspected of drug crimes and other criminal behavior. The degree to which this behavior violates a suspect's Fourth Amendment rights will almost certainly be the subject of future court decisions.

]]> The American Civil Liberties Union has collected internal documents from at least 205 police departments across the United States that reveal the growing role that cell phones play in criminal investigations. In some states, police departments have been able to determine a cell phone user's proximity to a particular tower. In other states, police have been trained in strategies for having cell phone carriers to clone a phone and download text messages, even when the phone is turned off. Some department have their own technology so they can perform the tracking themselves rather than having to ask carriers to do it for them.

The ACLU report lists 49 police departments in New Jersey that have been tracking people's cell phones without seeking warrants that includes both larger communities such as Trenton and Jersey City and smaller places such as Toms River and Gloucester Township.

Source: New York Times, "Police Are Using Phone Tracking as a Routine Tool," by Eric Lichtblau, Mar. 31, 2012.

Man charged with sexual assault not on registry

2012-04-05T14:03:00Z

A recent arrest illustrates the dangers of relying too heavily on sex crime registration laws such as New Jersey's Megan's Law. A 24-year-old man was charged with the sexual assault of a 15-year-old girl on March 20, and was held in the Mercer County Jail on $100,000 full cash bond. He also faces charges of criminal sexual contact, luring and enticing a child and endangering the welfare of a child.

]]> His name could not be found in New Jersey's database of registered sex offenders. This could mean several things: he may have been previously convicted of a sex crime, but not one that requires registration. Or, he may have never been charged with or convicted for any sex crime before his arrest on March 20. Or he may have been listed under another name, or been convicted in another state with different registration requirements. The list of possible reasons for not being on the sex offender registry could be long.

Police are not saying much about the case. However, it is known that they executed a search warrant at the man's home, that he was not arrested during the assault, that the sex was not consensual, and that the offense was not connected with the schools. A police spokesperson said that they are hoping that additional victims will come forward to strengthen the case against him.

State sex offender registration laws have been around in some form since the late 1940s. However, notifying people about the presence of sex offenders in their communities is a relatively new phenomenon. Several of the state laws, notably those in California and Massachusetts, have been struck down as unconstitutional.

Source: NJ.com, "Hamilton man charged with sexual assault, enticing a child," Mar. 22, 2012.