Domestic violence cases pose a unique challenge for prosecutors because domestic violence incidents are at once difficult to prosecute, yet extremely common, occurring, on average, about once every eight seconds throughout New Jersey, according to the statistics compiled by the New Jersey Attorney General’s Office. Domestic violence is difficult to prosecute because incidents usually happen in the privacy of the home and are only witnessed by only two people: the defendant and the alleged victim. In many cases, victims may be ambivalent about assisting the prosecution because of the impact that a criminal conviction might have on the victim or her family. In others, the victim may be confused by lingering romantic feelings for the defendant or, more troublingly, might be unable to escape the overwhelming influence of a controlling perpetrator. On the other side of the spectrum, some allegations of domestic violence assault are embellished or even completely manufactured by an aggrieved romantic partner. Against this complex backdrop, domestic violence prosecutors must contend with the grim reality that every year in New Jersey, ever more victims of domestic violence will be killed by a perpetrator who had already been prosecuted for domestic abuse. Though these fatalities can seem preventable in hindsight, identifying the most vulnerable victims in a sea of domestic violence calls is no easy task.

Over the past decade, criminal justice and public health researchers have come to identify a single risk factors as perhaps the most powerful tool for identifying perpetrators who pose the greatest risk of a future domestic violence homicide: strangulation. A 2008 study found victims of strangulation to seven times more likely to die in a domestic violence incident as compared to victims who had never been strangled (Glass et al. 2008). As noted by the New Jersey Domestic Violence Fatality Near Fatality Review Board in its 2018 report, Fatality by Strangulation, “despite strangulation being a strong predictor of homicide, it is very difficult to identify as there are typically no physical signs, such as bruises, because most injuries occur internally.” According to the Board, strangulation is not only one of the strongest predictors of future serious violence, it is extremely dangerous in and of itself, and a strangled victim may have narrowly escaped a brush with death, despite showing few outward signs of an assault. In 2019 in New Jersey, seven percent of domestic violence homicides were accomplished through strangulation. (2021 DV Fatality Review Board Annual Report).

New Jersey did not have a statute specifically targeting and criminalizing strangulation until 2017, when it became the 37th state to criminalize assault by strangulation. Under this new subsection of the aggravated assault statute, a person who knowingly or under circumstances manifesting extreme indifference to the value of human life, recklessly obstructs the breathing or blood circulation of a person by applying pressure on the throat or neck or blocking the nose or mouth in an act of domestic violence is guilty of a third-degree aggravated assault, punishable by up to five (5) years imprisonment, a $15,000 fine, or both, whether or not the victim lost consciousness, N.J.S.A. 2C:12-1b(13). Prior to passage of the legislation, aggravated assaults were graded in severity by the extent of injury, so, unless a victim lost consciousness, a strangulation might be prosecuted as a simple assault in municipal court.

In 2021, Governor Phil Murphy increased the criminal penalties for strangulation as more studies highlighted the dangers of strangulation. The 2021 legislation elevated the criminal penalties for strangulation to a crime of the second degree, punishable by up to ten years imprisonment, a fine of up to $150,000, or both, and a presumption of imprisonment. At the time, Governor Murphy stated that “[r]esearch has shown that strangulation is often one of the strongest red flags for predicting future homicides of victims of domestic violence. This legislation recognizes the seriousness of strangulation assault and gives us the tools necessary to hold people accountable for their actions.”

Stahl Gasiorowski Criminal Defense Attorneys has represented a number of individuals investigated and charged with domestic violence charges. To contact Mr. Olesnycky, call 908.301.9001 for the NJ office and 212.755.3300 for the NYC office, or email Mr. Olesnycky at ao@sgdefenselaw.com.

It may come as a surprise to most, including many criminal defense attorneys, that the federal system detains a greater percentage of people arrested than state systems. Since the Bail Reform Act (BRA), enacted in 1984, pretrial detention has significantly increased from 19% in 1985 to 75% in 2019, which is particularly astounding, considering violent crime accounts for only 2% of federal arrests.

The BRA provides that a court release a defendant on the “least restrictive” conditions to “reasonably assure” the appearance of the defendant and the safety of the community. Detention hearings shall only be held in cases which involve very specific factors that authorize pretrial detention. Such factors include drug offenses, certain gun and recidivist offenses, crimes of violence or terrorism, as well as offenses involving a maximum term of life in prison or death.

In 1987, when the constitutionality of the BRA was challenged, the United States Supreme Court stressed that “[i]n our society liberty is the norm, and detention prior to trial . . . is the carefully limited exception.” However, statistics demonstrate that federal prosecutors around the country routinely and impermissibly seek pretrial detention at a far greater rate than allowed by the BRA. In spite of the fact that in 2019, 99% of federally-charged defendants appeared in court as required, and 98% of defendants did not commit new crimes while on pretrial release.

In an effort to counter a government’s claim of serious risk of flight, defense counsel may overcome the argument by demonstrating that the client has lived in the community for a long time, is married with children, is steadily employed, has no record of failing to appear, and/or no prior record. In cases involving serious risk of danger to the community, defense counsel may overcome the argument through similar factors, as well as additional conditions of release such as home confinement with electronic monitoring or third-party custodians.

Recently, the Judicial Conference of the Unites States asked Congress to narrow the presumption of detention in drug cases to only people with very serious criminal records. This is important given the push from the Department of Justice to federally charge a greater number of people arrested for state drug and gun offenses. Many lower-level drug offenders are scooped up under the guise that they are associated with organized drug distributors or gangs. Since federal cases routinely take far longer to resolve by plea or trial, individuals in federal pretrial detention face limited family contact and ready access to counsel, as well as loss of employment and ultimately harsher sentences.

It is critical to hire experienced federal criminal defense counsel when charged with a federal crime. Our attorneys are highly experienced in representing individuals charged with federal crimes where the government seeks pretrial detention. Mindful of the importance of self-distancing, we at times work remotely but are available to meet new clients either in person, through video conferencing, or by phone. Challenging times demand innovation and accommodation to our client’s needs. Stahl Gasiorowski Criminal Defense is here for all of your criminal legal needs during this time. To contact the firm’s NJ office, call 908.301.9001 and to contact the firm’s NYC office, call 212.755.3300, or email Mr. Stahl at rgs@sgdefenselaw.com

With our societal addiction to the internet, smartphones, and computers, today’s teens face growing exposure to new forms of harassment and bullying. These can sometimes lead to criminal charges for those engaging in this conduct, and potentially anxiety, depression and, suicidal thoughts for the recipients.

Sexting is the sending, receiving or forwarding of sexually explicit material over electronic devices, including cellphones and computers. Sexually explicit material includes nude or partially nude photos or videos. Studies have revealed that more than 50% of young adults have sent nude or seminude photos of themselves to others, and more than 70% have received such materials. New Jersey, like many states, criminalizes the sending, possession, sharing or viewing of sexually explicit photos and videos of anyone under the age of 18 under its child pornography laws. That means that a student under 18 who sends a nude photo of themselves to another student under 18 could face criminal prosecution. While there is a diversionary program available for juveniles charged with their first sexting offense, these are serious matters that persist in middle and high schools across the country.

Revenge porn, also referred to as non-consensual pornography, is the distribution of sexually explicit images of an individual without his or her consent and without legitimate purpose. It is an ever-increasing, invasive form of cyber harassment. It usually involves a former sexual partner, who sends nude photos or videos to the victim’s family, friends, or employer in an effort to degrade, embarrass, and harass. In New Jersey, this form of harassment is a third-degree crime, exposing the perpetrator to 3-5 years in state prison.

Cyberbullying is the repeated and intentional harassment of another person over electronic devices. Cyberbullying is rampant among teenagers and has recently resulted in a number of highly publicized suicides by victims. Studies have demonstrated that the adverse impact of cyberbullying can last much longer and cause greater damage than traditional forms of in-person bullying.

These activities are the latest form of domestic violence, stalking, and harassment. They carry serious criminal penalties and require experience and expertise to handle correctly, as they risk incarceration, criminal fines and penalties, and civil restraining orders.

Stahl Gasiorowski Criminal Defense Lawyers aggressively defend individuals charged with complex federal and state crimes. Founder Robert G. Stahl is recognized as one of the top criminal defense attorneys in the NY/NJ area for his skills, knowledge and success. To contact the firm, call 908.301.9001 for the NJ office and 212.755.3300 for the NYC office, or email Mr. Stahl at rgs@sgdefenselaw.com.

Police generally cannot enter a home without a search warrant. When certain circumstances are present, however, there are recognized exceptions to warrant requirement. One such exception is consent; a resident may invite the police into his or her home without requiring the police to obtain a warrant. Another exception is the “protective sweep”; the police may enter a home to conduct a quick search for potentially dangerous persons if they are already lawfully within a residence and they develop a reasonable suspicion that that there is an individual in the residence that poses a danger. If during a lawful protective sweep the police find in plain view something that is clearly contraband, such as illegal drugs, the police may lawfully seize the contraband and prosecute the possessor.

In Bryant, officers responded to a home from which a 911 call was placed by a woman who alleged that her boyfriend had struck her. While two officers spoke to a woman who was outside the home, crying inside a car in the driveway, two other officers knocked on the door to the house. When a man answered, the officers instructed him to take a seat on the couch inside. One of the officers questioned the man while the other conducted a protective sweep of the house. The officers did not get any information about the domestic violence incident from either the woman or the man prior to conducting the sweep. During the protective sweep, the officer found marijuana and a firearm.

The Supreme Court ruled that the marijuana and the firearm must be suppressed because the evidence was uncovered during an illegal warrantless search of the home. The protective sweep was improper because the police conducted it without developing any facts that would suggest there might be another person inside the house who possesses a danger. In essence, the Bryant decision stands for the proposition that a 911 call alleging domestic violence within a home, without more, does not give the police reasonable suspicion to conduct a protective sweep of the home where the incident took place.

In the other case, In re Forfeiture of Personal Weapons and Firearms Identification Card Belonging to F.M., decided on June 30, 2016, the Supreme Court ordered the permanent confiscation of a police officer’s firearms and firearms purchaser identification card, even after the underlying criminal and civil domestic violence complaints against the police officer had been dismissed.

Under New Jersey law, police responding to a domestic violence incident are entitled to seize any weapon on the premises that would expose the victim to a risk of serious bodily injury. If the defendant is charged with a crime of domestic violence or becomes subject to a domestic violence restraining order, the police must seize any weapons registered to or owned by the defendant. The State may then seek forfeiture of the weapons and the defendant’s firearms purchaser identification card in the family court. The forfeiture may be predicated upon any one of several reasons, including the defendant’s mental unfitness to possess weapons, or that the defendant became legally unable to possess certain weapons due to the issuance of a final restraining order or conviction of a crime. The State may also seek permanent confiscation of weapons and firearms purchaser identification cards if it can demonstrate to the family court that the defendant’s possession of weapons poses a continued threat to the victim. This is true even where the criminal charges and restraining order are ultimately dismissed or dropped by the victim.

In In re Weapons of F.M., a police officer responding to a domestic violence call observed F.M., who was himself a police officer, throw his estranged wife into a stone retaining wall. F.M. was charged with simple assault and the wife sought a restraining order. F.M. claimed that he was merely attempting to remove his wife from holding onto his car to prevent his court-ordered visitation with his children. Ultimately, the restraining order was dismissed by the family court judge, and the municipal court dismissed F.M.’s assault charge after the defendant agreed to attend court-ordered counseling.

The State nevertheless proceeded with a motion to forfeit F.M.’s weapons and firearms purchaser identification card based upon his history of domestic violence, arguing that the return of his weapons would not be in the interest of public safety. A great deal of evidence was presented to the family court, including contradictory testimony from F.M. and his wife, as well as the testimony of mental health experts, presented by the State, who concluded that F.M. suffered from narcissistic and anti-social tendencies. The family court rejected the State’s arguments and returned F.M.’s weapons and firearms purchaser identification card.

The Supreme Court reversed the family court’s decision, as well as an Appellate Division decision upholding the family court. The significance of In re Weapons of F.M. is that the Supreme Court, which is ordinarily expected to defer to the factual and credibility determinations of the family court in gun forfeiture cases, took the extraordinary step of concluding that the family court’s decision to rearm the defendant was “manifestly unsupported” by competent evidence.

The Supreme Court’s decision, in essence, was that the family court dismissed the State’s claim without addressing certain critical evidence that should have been addressed on the record, and for improperly discounting the unrefuted expert testimony. The Supreme Court’s decision is long, complex, and very fact-dependent, but the decision signals the Court’s insistence that rearming decisions be made with care, even if the underlying criminal charges and/or restraining orders are dismissed by other courts. It also suggests that if the State relies on expert testimony in support of its motion to forfeit a defendant’s weapon, a defendant would be well-served to obtain his or her own expert to refute the State’s evidence, because the Court found it significant that the State’s expert evidence was never refuted by the defendant.

Stahl Gasiorowski Criminal Defense Lawyers aggressively defend individuals charged with domestic violence and criminal charges. Andrew Olesnycky, Esq.has served as the head of the Union County Prosecutor’s Office’s Domestic Violence Unit, and the domestic violence supervisor. He represents those accused of domestic violence in criminal, civil, and administrative proceedings, as well as victims of domestic violence seeking restraining orders in family court. Mr. Olesnycky’s cases have been widely covered in the news, including the New York Times, CBS This Morning, NBC4 New York, the Associated Press, the Boston Globe, NJ.com, the Star Ledger, and ESPN. To contact us to discuss your case, call 908.301.9001 for our NJ office and 212.755.3300 for our NYC office, or email us at aolesnycky@stahlesq.com.

In the wake of the Josh Brown domestic violence incident, the National Football League has, in the public’s eyes, badly mishandled the imposition of discipline over a player accused of domestic violence for the third time in three years. While the headlines have portrayed the NFL as soft on domestic violence following the Ray Rice, Greg Hardy, and, now, Josh Brown cases, it appears to me, as someone who has supervised domestic violence prosecutions for the State of New Jersey, that the NFL’s problem is not that it is soft on domestic violence. I think the league wants to be able to investigate and punish domestic violence appropriately, but it is finding that it is not an easy task. The NFL is simply making mistakes that are fairly typical of a rookie prosecutor that is unfamiliar with domestic violence prosecutions.

Addressing the Josh Brown scandal, NFL Commissioner Roger Goodell on October 27, 2016 told the Daily News’ Gary Myers during WFAN Radio’s “Chalk Talk” show, “We’ve learned a lot, but these are complex matters. When you talk to the domestic violence experts, these are difficult matters to deal with. You have rights, you have families that you have to be concerned with, privacy issues.” He’s right. Domestic violence prosecutions are complex matters that are notoriously difficult to prosecute. But the problems that are facing the NFL – integrating victim interests into the adjudicatory process, managing public opinion, and achieving fairness and uniformity in punishment – are the same problems that domestic violence prosecutors have been facing for years. Prosecutors have developed a playbook to overcome these problems. The NFL needs to read, understand, and utilize that playbook to reach better disciplinary outcomes and regain the public’s trust.

Rule #1: Understand the issue of domestic violence and the public’s expectations

By now, the NFL does not need to be told that crimes of domestic violence provoke extreme public outrage against the perpetrator. Domestic violence represents not only a violation of the rights of another person, but a breach of the societal value of trust in one’s intimate partner. Prosecutors know that bad domestic violence cases get even the calmest grand juries humming with indignation. Jurors treat claims of domestic violence with initial skepticism, but when confronted with objective evidence documenting a crime of domestic violence – pictures of a bloodied face or broken bones or shrieking cries for help on a 9-1-1 call – people struggle to contain their disgust.

A domestic violence prosecutor also understands that when prosecuting a public figure for domestic violence, the public will be interested in the outcome, and that a prosecutor’s failure to satisfy the public’s sense of justice will be met with hostility and resentment. The NFL, if it hasn’t done so already, needs to accept this lesson as it applies to its own system of player discipline. Whether the NFL likes it or not, it has become so enmeshed in the fabric of American life that it must take seriously the public’s expectation that it will deliver administrative justice after allegations of domestic violence. It’s now clear that the NFL is not going to convince the public that it domestic violence is someone else’s problem.

Rule #2: Design a system seeks the whole truth, even when it hurts

The NFL’s critical error in the Ray Rice, Greg Hardy, and Josh Brown cases was in imposing discipline too quickly, based on an incomplete or incorrect record of the incident. The NFL committed the rookie prosecutor’s mistake of hearing what it wanted to hear and imposing discipline based upon the rosiest picture of what may have happened. An experienced domestic violence prosecutor knows that the truth will eventually come out, whether in the press or – God forbid – in a subsequent incident. It is never worth sacrificing the truth for a quick and easy solution.

In Rice’s case, a horrific video of Rice punching and knocking out his victim hit the internet after the league had already imposed a two game suspension. In Brown’s case, the league imposed a one-game suspension prior to the release of the victim’s diary entries demonstrating a shocking pattern of abuse over a period of years. In both cases, the NFL was blindsided by evidence that it should have obtained before undertaking to discipline the players.

The NFL must create an adjudicatory system where it can be assured that it has access to all the evidence that will eventually be released, especially the evidence that is certain to come to light after the inevitable public records requests by the press. In practical terms, this means that the NFL should wait for the conclusion of any criminal case (the police file will be confidential while a criminal case is pending) and then make its own use of open public records laws to obtain the full contents of the police file. Only then should it conduct a hearing in which it can take testimony and compare witness accounts with the evidence gathered at the scene.

Once it is assured that it has all the evidence that will become available, the NFL must then honestly weigh the evidence and make its own decision about what really happened, and not rely on the prosecution’s charging decision or the plea bargain in the criminal case – which may have been based upon prosecutorial considerations that are inapplicable to an NFL hearing, which has different rules of evidence and a lesser standard or proof. Unless the league commits to a process that weighs all the evidence in the police file, it will simply be guessing when it tries to fit the punishment to the crime, and will continue to be skewered in the court of public opinion when it guesses wrong.

Rule #3: Seek justice even in the absence of victim cooperation

Any detective or prosecutor who has served in a domestic violence unit accepts victim non-cooperation as a fact of life. At a national conference for domestic violence prosecutors I attended last year, a domestic violence supervisor from New York told the audience that his rate of victim non-cooperation in his jurisdiction was 75%. Victims occasionally fail to report domestic violence incidents or refuse to cooperate with prosecutors for several reasons. The most troubling reason is that victims of domestic violence are often trapped in a cycle of abuse and can be subjected to undue influence by their abuser, or may simply be too afraid to face the abuser in court. But even where a victim has been subjected to domestic violence for the first time, the victim may be uncooperative due to continued love and compassion for the perpetrator, feelings of guilt or shame for causing the perpetrator painful legal troubles, or personal adverse financial or social consequences stemming from prosecution of the perpetrator. Whatever the reasons, a domestic violence prosecutor accepts that a victim may not cooperate, but does not let non-cooperation dictate the outcome of the case.

In the Ray Rice and Josh Brown cases, the victims were uncooperative and the NFL made the rookie prosecutor’s mistake of treating victim non-cooperation as free license to impose a milder punishment. When there is ample evidence of a serious assault, the public does not care about the victim’s forgiveness, and expects justice to be served. It is true that victim non-cooperation makes a case harder to prove, and that a victim’s wish for leniency should be considered as a mitigating factor by a prosecutor, but it should not absolve a person on wrongdoing when there is other evidence demonstrating that the player committed a serious offense. The following section explains how the NFL can create an adjudicative process that achieves justice even in the absence of victim cooperation.

Rule #4: Adopt the principles of “evidence based” prosecution

Prosecutors have developed a series of strategies to get closer to the whole truth in domestic violence prosecutions, and the NFL should adapt those strategies to suit its purposes. Around the country, domestic violence prosecutors have embraced “evidence based” domestic violence prosecutions, a technique by which so much evidence is gathered immediately that a case against a defendant can be tried even in the absence of victim cooperation. Techniques include the taking of on-scene photographs of injuries; preserving 911 calls and video evidence; taking victim statements at the scene on video, rather than at police headquarters after a long wait; and aggressively seeking out additional witnesses. Seasoned domestic violence prosecutors understand that some victims will not cooperate, so they must investigate each case proactively. They know that they cannot wait for the evidence to come to them, so they go out and find it themselves. The NFL must do the same.

The NFL of course cannot adopt the evidence based prosecution procedures of the police, but they must adopt the equivalent to suit its particular purposes. It must understand the types of evidence that are gathered in domestic violence investigations, and wait to adjudicate the case until it has all the evidence that would be used by the police in an evidence-based prosecution. It can do so through the same open public records requests used by the press to unearth the video, photos, and diary entries in the Rice, Hardy, and Brown cases. The league must then independently weigh all the evidence, even in the absence of victim cooperation, and impose discipline that will satisfy its viewers that it does not condone domestic violence.

Rule #5: Include due process protections for players to ensure fairness

The NFL’s adjudicatory system for allegations of domestic violence must include due process safeguards to protect the rights of accused players as it does the rights of victims. A system of more aggressive investigations and substantial adjudicative hearings would not only benefit the league by revealing those players who are truly in need of discipline, it would also benefit players who find themselves in the nightmare scenario of having been unjustly accused of a crime of domestic violence. And as a practical matter, any changes to the collective bargaining agreement regarding discipline or domestic violence will need the approval of the players, and the inclusion of due process safeguards should be something that everyone can agree upon.

Since the suggested changes to the disciplinary system would entail longer periods of investigation and adjudication, players should be accorded a presumption of innocence while the criminal charges are pending. They should also be provided with the right to confront their accuser in court and should not be subjected to double jeopardy. A failure to provide adequate fairness will result in embarrassment for the league in the form of overturned suspensions. In the Hardy case, for example, the NFL apparently had access to photos of the victim’s injuries prior to imposing discipline and imposed a relatively severe 10-game suspension, but the suspension was overturned on an appeal by an arbitrator due to a lack of clear notice to players regarding increased domestic violence penalties in the wake of the Rice cases.

When it comes to domestic violence, the NFL must reimagine itself as a prosecutorial and adjudicative body, and must understand that if it fails to deliver justice though a fair process, its brand will continue to suffer. Domestic violence is far more widespread than most people realize, and I have no reason to believe that football players are any more prone to domestic violence than the general public. But unless the NFL becomes more open about the issue of domestic violence and shows the public that it handles allegations with true investigation and not through back-room negotiation, the league will continue to be associated – fairly or unfairly – with this societal ill.

The author, Andrew Olesnycky, is the former supervisor of the Union County Prosecutor’s Office Domestic Violence Unit and handles domestic violence litigation in private practice for both victims and defendants.

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