In State v. O’Donnell, 2023 WL 50005787 (August 7, 2023), the New Jersey Supreme Court made clear that our bribery statute, NJSA 2C:27-2(d), includes bribes to a candidate for public office, as well as an actual office holder. In 2018, O’Donnell was a Bayonne mayoral candidate. A tax attorney who was cooperating with law enforcement brought a bag of cash to O’Donnell’s campaign headquarters with the promise that if O’Donnell was elected mayor, he would make the cooperator the city’s tax counsel. The candidate was indicted under New Jersey’s bribery statute.

The trial court dismissed the bribery charge reasoning that the statute did not apply to a mere candidate for office as he was not yet a “public official.” The Appellate Division reversed, holding that it was irrelevant to the candidate’s culpability whether he was elected to office. The Supreme Court unanimously affirmed. It held that the bribery statute applies to a candidate for political office even if he is not an incumbent and is not ultimately elected.

In holding that a candidate can be found guilty under New Jersey’s bribery statute, the court relied extensively on the plain language of the statute and prior case law. In particular the Court held that, “It is no defense to prosecution under this section that a person whom the actor sought to influence was not qualified to act in the desired way whether because he has not yet assumed office, or lacked jurisdiction, or for any other reason.” The Court also cited a prior Appellate Division case, State v. Schenkolewski, which held that neither the bribe giver nor recipient need be a public official, only that he could influence matters in connection with an official duty, whether actually capable or not of doing so.

In contrast, in May of this year, the U.S. Supreme Court narrowed the reach of a similar statute holding that a private citizen, even one with influence over government decision-making, cannot be convicted for wire fraud based on an intangible right to honest-services for accepting payment to exercise that influence. Percoco v. United States, 143 S. Ct. 1130 (2023). While the decision focused on erroneous jury instructions at trial, Percoco is one in a line of cases narrowing the reach and scope of the federal bribery offenses.

Stahl Gasiorowski Criminal Defense Attorneys actively and aggressively protect clients’ rights and have represented numerous clients faced with bribery and honest services fraud in state and federal courts. To contact Mr. Stahl, call 908.301.9001 for the NJ office and 212.755.3300 for the NYC office, or email Mr. Stahl at rgs@sgdefenselaw.com.

Universities around the country have been aggressively investigating hazing. These investigations have been propelled by several tragic events that have resulted in fatalities or serious injuries usually resulting from excessive alcohol consumption.

Most university policies, as well as state laws, broadly define hazing as any type of conduct in relation to joining a fraternity, sorority, eating club or sports team that is not purely an athletic competition. Most universities have language similar to the following:

“Any student shall have the right to be free of all activities which might constitute hazing, while attempting to become a member of, or maintain membership in, a fraternity, sorority, athletic team, student organization, eating club, or other organization. Organizations, their members, and their prospective members are prohibited from engaging in or encouraging others to engage in activities that are defined as hazing.

Hazing encompasses a broad range of behaviors that may place another person in danger of bodily injury, or that demonstrates indifference or disregard for another person’s dignity or well-being.

Examples of hazing include but are not limited to the following:

• Ingestion of alcohol, food, drugs, or any undesirable substance.
• Participation in sexual rituals or assaults.
• Emotionally or psychologically abusive or demeaning behavior.
• Acts that could result in physical, psychological, or emotional deprivation or harm.
• Physical abuse, e.g., whipping, paddling, beating, tattooing, branding, and exposure to the elements, or the threat of such behaviors.
• Participation in illegal activities or activities prohibited by University policy.

Students who participate in hazing pledges are potentially subject to both criminal and university charges. Even the pledges who are subjected to hazing can and often are charged with violation of university hazing policy. Further, it is no defense to hazing that the person (pledge) consented to the activity.

Similarly, under New Jersey law, a person is guilty of hazing, “a disorderly persons offense, if, in connection with the initiation of applicants to or members of a student or fraternal organization, that person knowingly or recklessly organizes, promotes, facilitates, or engages in any conduct, other than competitive athletic events, which places or may place another person in danger of bodily injury. A person is guilty of aggravated hazing, a crime of the fourth degree, if that person commits an act which results in serious bodily injury to another person. Consent shall not be available as a defense to a prosecution under law.”

Often, students are faced with a difficult decision – if they fail to cooperate and are not candid with university disciplinary investigators, they can be disciplined for failure to cooperate and lack of honesty, while full cooperation can lead to a wider investigation of the activities and result in additional disciplinary action by the university. Conversely, anything they reveal in the university setting may be used against them in a parallel criminal investigation.

Stahl Gasiorowski Criminal Defense Attorneys has successfully represented a number of university students investigated and charged with hazing. We have the experience and skills to effectively navigate our clients through these complex investigations to achieve the best possible outcome. To contact Mr. Stahl or Ms. Gasiorowski, call 908.301.9001 for the NJ office and 212.755.3300 for the NYC office, or email Mr. Stahl at rgs@sgdefenselaw.com or Ms. Gasiowski at lkg@sgdefenselaw.com.

Law enforcement and intelligence agencies around the world use facial recognition technology and other AI in investigations to track targets’ movements and as evidence in prosecutions. While books and movies often portray this technology as highly advanced and foolproof, reality can be quite different. Recent cases have demonstrated that facial recognition technology is far from foolproof and may lead to even more misidentifications when identifying people of color.

Companies such as Clearview AI have contracts with law enforcement agencies across the United States. Clearview scrapes billions of photos from social media for its database. Photos from LinkedIn, Facebook, Instagram and the public web are uploaded to its database. For an annual fee, law enforcement has access to a face-based search engine. Obviously, a number of factors affect the reliability of the search results. The quality and resolution of the surveillance photo used for the search, the ethnicity of the subject, and the number and age of the comparison photos can all affect the results.

The most troubling, however, is that it appears that in a number of cases law enforcement failed to use other investigative means before seeking arrest warrants for the individuals “identified” by facial recognition software. As Clearview’s CEO made clear to the New York Times recently, when its technology comes up with an “initial result” that should be the starting point in law enforcement’s investigation, not the conclusion. In other words, facial recognition technology should only be used as one investigative tool that may provide a lead in an investigation that must then be coupled with other basic investigative steps.

A recent example of this is the case of Randal Quran Reid who was driving near Atlanta when he was stopped and arrested for alleged thefts in Louisiana. The police in Baton Rouge and Jefferson Parish had apparently used facial recognition from store videos purporting to show Mr. Reid stealing valuable items. Warrants for his arrest were issued and Mr. Reid was held for days pending extradition for crimes he did not commit. The NYT reports that it seems likely that local police simply used the faulty facial recognition identification to obtain the arrest warrants. It is difficult to know for sure because many law enforcement agencies do not reveal that such technology was used, or that it was the sole or primary basis for the warrant.

What should officials in Louisiana have done before issuing an arrest warrant based on facial recognition? First, actually compare the photos to Mr. Reid. According to the article, Mr. Reid is smaller, lighter and less muscular that the actual thief. Next, investigate to see if Mr. Reid was actually in Louisiana around the time of the thefts. How does one determine that? Examine credit card receipts for gas purchases or any other items in the state, travel records and EZ-Pass records, social media, license plate readers and the like. Conversely, look to see if there is evidence that Mr. Reid was in his home state during the thefts. In fact, had law enforcement checked, they would have discovered that Mr. Reid had never been to Louisiana.

Artificial intelligence is advancing at breakneck speed and law enforcement is eager to use all forms of technology to assist in their investigations. The key, however, is AI should only be used to “assist” not conclude. Traditional investigative techniques must be employed to corroborate and verify the alleged results of such database searches, lest more innocent people sit in jail hoping that their attorneys can free them.

Stahl Gasiorowski Criminal Defense Attorneys actively and aggressively protect clients’ rights and challenge the use of such AI based searches in pretrial hearings and trial. To contact Mr. Stahl, call 908.301.9001 for the NJ office and 212.755.3300 for the NYC office, or email Mr. Stahl at rgs@sgdefenselaw.com.

On June 23, 2022, the Supreme Court of the United States issued a decision that dramatically altered a citizen’s ability to carry a firearm outside one’s home. New York State Rifle & Pistol Assoc. v. Bruen, No. 20-843, was a challenge to New York State’s Law requiring justifiable need and good cause for an individual to secure a permit for concealed carry of a firearm. The Supreme Court held that the Second Amendment afforded individuals the right to carry a concealed firearm for self-defense and that the necessity of justifiable need would be an infringement on that right.

The Bruen decision has led to a dramatic change in New Jersey law. Prior to Bruen, New Jersey, like New York, issued only a handful of such permits as N.J.S.A. 2C:58-4 required every applicant to “demonstrate a justifiable need to carry a handgun.” That need was strictly interpreted.

Thus, on June 24, 2022, Attorney General Matthew J. Platkin issued Law Enforcement Directive No. 2022-07 urging all police departments to process concealed carry permits by continuing to implement statutory prohibitions, background checks and firearms familiarity as required by N.J.S.A. 2C:58-3(c)(1) – (11) and N.J.A.C. 13:54-2.4(b). With the change in law, Governor Murphy predicted that 200,000 applications for concealed carry permits would likely be filed. The system, however, was designed to handle a very small number of applications. For instance in 2014, in a state with a population almost 9 million residents, only 496 concealed carry permits were issued.

New applications have already overloaded the application process, police departments and the Courts. Several counties are requiring hearings before the Presiding Criminal Division Judge to determine the eligibility, restrictions, and approval of concealed carry permits. These courts, already severely backlogged with criminal cases that were on hold during the COVID-19 pandemic, are now deluged with carry permit applications. While it remains to be seen how the Courts will adjust to the volume of applicants, as well as, what new or additional restrictions may be introduced by law makers, one thing is certain, applicants will endure a long and arduous process. These delays will be met with pressure from applicants citing N.J.S.A. 2C:58-4, which states: “If the application is not approved by the chief police officer or the superintendent within 60 days of filing, it shall be deemed to have been approved, unless the applicant agrees to an extension of time in writing”.

In the wake of Bruen, Governor Murphy also implemented new training and safety requirements for those applying for a Firearms Purchaser Identification Card (FID). An FID is required for any New Jersey Resident to purchase a firearm. On July 5, 2022, Governor Murphy signed into law new revisions to N.J.S.A. 2C:58-3 to take effect immediately. Revisions included “In order to obtain a permit to purchase a handgun or firearms purchaser identification card, the applicant shall demonstrate that, within four years prior to the date of the application, the applicant satisfactorily completed a course of instruction approved by the superintendent in the lawful and safe handling and storage of firearms. The applicant shall be required to demonstrate completion of a course of instruction only once prior to obtaining either a firearms purchaser identification card or the applicant’s first permit to purchase a handgun.” In addition, a NJ FID Card must now display a color photograph and thumb print of the card holder and the card holder must now renew their FID Card every ten (10) years. NJ FID Cards previously had no expiration date.

The immediate implementation of these revisions caused further confusion and delays. A number of municipalities stopped processing applications, uncertain which training course(s) would be approved by the State Police Superintendent. Another issue involves the cards themselves. FID Cards now must bear both the photograph and thumbprint of the card holder. The current system, however, was designed to distribute approved FID cards in a digital format. Towns are now concerned whether new equipment to print the FID cards with photographs and thumb prints must be purchased. Indecision regarding the new statutory amendments reached its peak when the Bergen County Prosecutor’s Office issued a directive to all municipal police departments in the county to stop processing and issuing FID cards until clarification on fulfillment of new protocols was established by both the Superintendent and Governor.

In a speech to members of the Association of New Jersey Rifle & Pistol Clubs, the Governor announced that the Superintendent had approved a new online course to satisfy the training requirement of the new law. This instructional safety course, provided free of charge to first time applicants, was implemented on Monday, September 16, on the New Jersey Firearms Application & Registration portal found on the NJSP’s website. The Governor also confirmed that all County Prosecutors were to process first-time purchaser applications without the requirement of the new amendments.

Undoubtedly, New Jersey has one of the nations’ strictest set of gun laws. Experienced and skillful legal advice can greatly assist applicants navigating the ever-changing landscape of firearm ownership in New Jersey.

Stahl Gasiorowski Criminal Defense Attorneys have represented numerous clients facing a variety of issues involving firearms and firearm ownership at both the state and federal level. We actively and aggressively protect clients’ rights. To Contact Mr. Stahl, call (908) 301-9001 for the NJ office and (212) 755-3300 for the NYC office, or email Mr. Stahl at RStahl@StahlEsq.com

Cybercrimes – hacking, phishing, ransomware and the like – are well-known to every user of the internet. We are bombarded weekly with emails and texts claiming that we need to update our passwords, personal profile, and the like. Now comes the rise of what has been called “romance scams”. The typical scheme starts with a fake dating profile on an online dating site. Fake name, picture, background, likes and what the alleged person is looking for in a mate is established. Once selected, the fraudster starts a series of on-line communications that lure the unsuspecting victim in with attention, romance and affection. The fraudster then sets out a story about why s/he needs money – lost their passport and credit cards while on a trip; a co-worker was injured and it was the fault of the scammer; needs money for a sick relative – always with the promise to return the money.

In 2021, it was reported that victims were scammed out of at least $547 million, an 80% increase over 2020. This figure is likely conservative since many victims of romance scams are too embarrassed to report them or the amounts are too small for law enforcement to actively investigate. Not unexpectedly, recently divorced and windowed women are frequent targets of romance scams.

Federal law enforcement has discovered that many of these types of scams are run out of Nigeria by organized groups, a well-known hotbed for cyber fraud and money laundering schemes. Many others, however, are simply con artists here in the United States looking for easy marks by preying on someone’s kindness, loneliness and vulnerabilities.

While older woman are common targets, the government reported that people between the ages of 18-29 are increasingly targets resulting in a tenfold increase from 2017 to 2021. Netflix documented one such scam in its documentary “The Tinder Swindler”. The film recounted the exploits of Shimon Hayut who held himself out as the son of a famous Russian-Israeli diamond scion. He lavished his victims with first class travel, jewelry and clothing using the proceeds from prior victims. His promotion of his lavish lifestyle on social media – private jets, yachts, expensive watches and clothes – was one way he recruited his victims. Once he lured a woman in, he then fabricated tales of being in danger and needing money for his safety.

These types of schemes are particularly heinous. They not only deprive the victims of often limited resources, they prey on their vulnerabilities, often leaving the victims psychologically scarred and feeling deeply violated. Victims are often too embarrassed to tell family, friend or law enforcement. Some are even left believing that the person who romanced them was genuine and something bad must have happened to him after they lose contact.

Recently, U.S. Attorney’s Offices, FBI and other federal agencies have been aggressively investigating and prosecuting these hideous schemes as often there are multiple victims totaling substantial losses.

Stahl Gasiorowski Criminal Defense Attorneys actively and aggressively protect clients’ rights. To contact Mr. Stahl, call 908.301.9001 for the NJ office and 212.755.3300 for the NYC office, or email Mr. Stahl at rgs@sgdefenselaw.com.

In response to a dramatic surge in car thefts across New Jersey, State Attorney General Matt Platkin announced today that he is reversing a policy that prevented police officers from pursuing stolen cars. In late 2021, Platkin effected a statewide policy that prohibited police from chasing a stolen car unless they suspected it had been used in the most serious of crimes, such as murder, vehicular homicide or kidnapping. Thus, the A.G.’s policy prohibited police from pursuing a car simply because it had been stolen.

After scores of stolen vehicles, and complaints from citizens, local government officials and police, Platkin relented to now permit police to chase a car they think has been stolen.

Last year, Platkin said he wanted to limit police chases because high-speed car chases are dangerous, and can put police officers and innocent drivers alike at risk. It was part of an overhaul led by Governor Murphy to reduce the use of force by police. However, with motor vehicle thefts up 127% from last January state officials recognized that the policy needed to be changed.

In addition, Platkin and Gov. Murphy announced that the state would use $10 million in American Rescue Plan funds to purchase automated license plate recognition technology. The funds will allow local police departments to purchase high-speed, automated camera systems that capture and store computer-readable images of license plates. These license-plate readers will be placed at “strategic locations throughout” towns and the N.J. State Police will also deploy cameras along major highways.

According to the Attorney General’s office, the most commonly stolen luxury vehicles are BMW X6, Land Rover Range Rover Sport, Audi Q5 and BMW X3.

The top vehicles stolen statewide in 2022 include Honda Accord, Jeep Grand Cherokee, Honda CR-V, BMW X5 and BMW 3-Series.

High speed chases are dangerous to the officers involved, as well as innocent drivers and pedestrians that may be injured when the stolen vehicle or the police crash. Police must use common sense, as well as policy guidelines, in their pursuits. More often than not, a stolen vehicle is just that – stolen – not a car being used to commit a serious felony. Many high end cars are stolen from wealthy suburbs because the owners negligently leave the keys in their car in their driveway or unlocked garage. Others are left running at convenience stores while their owners run in for a quick purchase. These types of thefts are crimes of opportunity and can be easily eliminated. Other car thefts involve use of force, specialized electronic equipment or fraudulent schemes that obtain access to vehicles that are much more difficult to combat.

Stahl Gasiorowski Criminal Defense Lawyers have extensive experience representing individuals charged with federal and state felonies. 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 rstahl@stahlesq.com.

When someone is being investigated or charged with a criminal offense, it is one of the most stressful and unnerving times of the person’s life. It is common to feel overwhelmed and uncertain about who to hire and what to ask in the initial consultation with a criminal defense attorney. Below are some tips on choosing the right attorney and the major questions a prospective client should ask the attorney.

First:

Look for an attorney and firm that specializes in criminal defense. But don’t stop there, find ones that have vast experience in the type of matter you face. If it is a federal investigation or indictment, make sure that the attorney has significant federal experience because federal cases are much different than state, county or municipal prosecutions. Focus on the type of charge as well. If the investigation or charge involves healthcare fraud, ask the attorney about his or her experience in healthcare fraud cases. Experience with both the type of case, and the prosecuting agency, is often critical to success. The more experience the attorney has usually results in better insights into the case, its defense and the type of resolutions that are realistic with the particular prosecuting agency.

Second:

An experienced criminal defense attorney should be able to talk, at least generally, about the strengths and weaknesses of the case. He or she should be able to identify the relevant issues, strategies going forward, and potential defenses. If the case is new, then the attorney can only give general insights because the prosecution has not yet provided any discovery – law enforcement reports, statements by witnesses or the client, recordings, photographs, documents, emails, text messages, etc. – that more fully detail the government’s case. But, the attorney should be able to explain how these types of cases are investigated and prosecuted, and be able to offer insights as to the type and scope of work that lies ahead. Be aware, however, that the attorney has no credible way of predicting the outcome of your matter at this early stage.

Third:

How long will it take to resolve the case? Experienced criminal defense counsel can inform you generally how long a case like yours usually takes, and what you can expect along the way. While each investigation and case are different, the attorney can give you a good idea of how long and what to expect for cases in the federal system or in each state or county that they practice.

Fourth:

How much will it cost to defend your matter? Most criminal cases are handled on a flat fee basis for certain portions of the case. A client needs to know that she can afford the representation and the attorney needs to know that the client has the resources to properly defend the case. In certain instances, particularly when the matter is still in the investigative stage and charges have not yet been brought, the representation will start on an hourly fee basis until the attorney has a better understanding of the scope and complexity of the case.

Fifth:

Who else will be working on your case, and does the firm have the time to handle your matter? These are important issues that the potential client should inquire about. The experience of the other lawyers in the firm, as well as their caseload, is critical to the quality of representation. Firms that handle a large volume of cases, with minimal staff, may not have the time and attention to detail that the client’s matter requires.

A Word of Caution:

These questions provide a good framework for the client to make an educated and informed decision about counsel. There are also the intangible areas of comfort and trust in the person and firm. But do not be lulled by boastful promises or talk of the attorney’s confidence that the case will be dismissed, or that charges will never be brought. Experienced and ethical counsel will reserve their opinions about the outcome until they have the relevant facts and can fully examine the evidence and the case law. Good defense counsel will tell you what you need to know, rather than what you want to hear for comfort.

Contact Stahl Gasiorowski Criminal Defense Lawyers

Stahl Gasiorowski Criminal Defense Lawyers have extensive experience in serious federal and state criminal cases. The founder of the firm, Robert Stahl, is a Certified Criminal Trial Attorney by the Supreme Court of New Jersey, a Fellow of the American College of Trial Lawyers and a former Assistant U.S. Attorney who tried some of the largest fraud and tax cases in the District of New Jersey. He has been aggressively defending serious cases in federal and state courts for more than 25 years.

The Covid-19 pandemic has motivated many changes in how government and healthcare providers deliver their services, from online classes for public schools, telemedicine, and even how NJ courts conduct matters – from routine administrative matters to more substantive proceedings. Many of us have adapted to new online processes and procedures to keep us safer during the lengthy pandemic scourge, and find in cases, online sessions can have advantages over gathering in person. Recently the NJ Supreme Court has sought feedback from lawyers on their preference for virtual court operations. The feedback the NJ Supreme Court received from attorneys, their clients, and court users found that they largely support conducting routine court operations online.

The Westfield Leader interviewed Robert G. Stahl, Esq. regarding the advantages of virtual proceedings for routine court proceedings for criminal defense cases. However, he recommends that substantive matters including pre-trial motions, hearings and trials continue to be conducted in person.

Download the full Westfield Leader article to read Robert Stahl’s views on when remote proceedings are appropriate, and when they are not.

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 rstahl@stahlesq.com.

The decision came about after the Office of Public Defender (OPD) and the American Civil Liberties Union (ACLU) asked the New Jersey Supreme Court to release all detainees charged with a second-degree offense or lower if they had been detained for six months or more and for a hearing process for inmates held on a first-degree charge. In doing so, the OPD noted that 1,044 of its clients were being held in detention for relatively minor third-degree offenses, 234 on fourth-degree offenses, and 28 on disorderly persons charges – without any prospect of a trial any time in the near future. The County Prosecutors Association and New Jersey Attorney General’s Office opposed the request on the ground that any release of inmates based on category alone would violate the Bail Reform Act.

The Supreme Court charted a middle path by noting that a provision of the Bail Reform Act, N.J.S.A. 2A:162-19(f), already permits defendant detainees to reopen detention hearings where they can present information that was not known at the time of the initial detention hearing and has a material bearing on the release decision. The Court concluded that “the unexpected duration of the pandemic coupled with the continued suspension of jury trials, with no clear end date for either, constitutes new information within the meaning of N.J.S.A. 2A:162-19(f).” In doing so, the Court approved the wholesale reopening of thousands of detention hearings and provided a framework through which judges should revisit the question of release on a case-by-case basis.

The Court’s framework encourages judges to consider five factors:

1. The length of the detention and projected length of ongoing detention,
2. Whether the defendant’s time in jail waiting for trial is likely to exceed their sentence if convicted,
3. The existence and nature of a plea offer,
4. A defendant’s health risks and susceptibility to serious illness from COVID-19, and
5. All of the factors that are typically considered in a detention hearing under normal circumstances.

The Supreme Court instructed that defendants who can make “a preliminary showing that they are entitled to relief under of any one of the above factors” have the right to reopen their detention hearings.

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.

In an extremely controversial 4-3 opinion, the New Jersey Supreme Court upheld trial and Appellate Division rulings compelling a defendant to provide his cellphone passcode pursuant to a search warrant. The defendant was an Essex County Sheriff’s Officer accused of providing a drug dealer confidential information about an investigation into the dealer and his co-conspirators. The drug dealer gave evidence establishing that the sheriff’s officer provided him information about undercover surveillance of his vehicle and phones, as well as other case related information. Law enforcement confirmed there were numerous texts and calls between the sheriff’s officer and the drug dealer. Law enforcement obtained a search warrant for the officer’s cellphones, but were unable to access them without the defendant’s passcodes or PINs.

The State moved to compel the officer to disclose the passcodes to his two iPhones. The defendant opposed the motion, claiming that compelled disclosure of his passcodes violated his protections against self-incrimination afforded by New Jersey’s common law and statutes, and the Fifth Amendment to the United States Constitution. The trial court rejected those arguments, ruling that “the act of providing a PIN, password, or passcode is not a testimonial act where the Fifth Amendment or New Jersey common and statutory law affords protection.” The court reasoned that “[a]llowing the State to access the call logs and text messages on [the] iPhones will add little to nothing to the aggregate of the Government’s information.” Further, “any testimonial act contained in the act of providing the PIN or passcode is a foregone conclusion because the State has established with reasonable particularity that it already knows that (1) the evidence sought exists, (2) the evidence was in the possession of the accused, and (3) the evidence is authentic.”

The trial court limited access on the cellphones “to that which is contained within (1) the ‘Phone’ icon and application on the two iPhones, and (2) the ‘Messages’ icon and/or text messaging applications used by the defendant during his communications with the gang member. The court also ordered that the search be performed by the State, in camera, in the presence of defense counsel and the court, with the court reviewing the PIN or passcode prior to its disclosure to the State.

In upholding the lower courts’ decisions, the Supreme Court agreed that compelled production of the passcodes fell within the “foregone conclusion” exception. The Court found the State demonstrated the existence of passcodes and the defendant’s possession and operation of the cellphones. The passcodes’ self-authenticating nature rendered the issue one of surrender, not testimony. Thus, the foregone conclusion exception to the Fifth Amendment privilege against self-incrimination was applicable.

The Court concluded that neither the Fifth Amendment’s privilege against self-incrimination nor New Jersey’s common law and statutory protections protect a criminal defendant from compelled disclosure of the passcodes to his cellphones.

In a strongly worded dissent Justice LaVecchia wrote in part:

In a world where the right to privacy is constantly shrinking, the Constitution provides shelter to our innermost thoughts — the contents of our minds — from the prying eyes of the government. The right of individuals to be free from the forced disclosure of the contents of their minds to assist law enforcement in a criminal investigation, until now, has been an inviolate principle of our law, protected by the Fifth Amendment and our state common law. No United States Supreme Court case presently requires otherwise. No case from this Court has held otherwise. That protection deserves utmost respect and should not be lessened to authorize courts to compel a defendant to reveal the passcode to a smartphone so law enforcement can access its secured contents.

We are at a crossroads in our law. Will we allow law enforcement — and our courts as their collaborators — to compel a defendant to disgorge undisclosed private thoughts — presumably memorized numbers or letters — so that the government can obtain access to encrypted smartphones? In my view, compelling the disclosure of a person’s mental thoughts is anathema to fundamental principles under our Constitution and state common law.

The Court’s outcome deviates from steadfast past principles protective of a defendant’s personal autonomy in the face of governmental compulsion in a criminal matter. Those same principles should apply even in the face of the latest challenge presented by new technology.

The Court’s decision here is contrary to other state and federal courts who have examined this very issue, making this matter and the overarching issue ripe for the review of the United States Supreme Court. Until such a review is conducted by the United States Supreme Court, defense counsel must advise their clients that they will be held in contempt for failure to reveal their passcodes when a validly issued search warrant is obtained.

This is an ever-developing and expanding area of law. It is important to hire well-versed and adept counsel when dealing with law enforcement’s intrusion into your personal data. We at Stahl Gasiorowski Criminal Defense Lawyers aggressively defend individuals charged with complex federal and state crimes. 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.

New Jersey, a small but densely populated State, has 21 counties and 565 municipalities. Right now there are 515 Municipal Courts – 316 have individual, stand-alone courts, 173 municipalities share services, while the remaining 76 municipalities have agreed to form 24 separate joint Municipal Courts. Each have their own judges, prosecutors, public defenders, court administrators and staff. Municipal courts handle approximately 6 million cases a year — motor vehicle summonses, violations of municipal ordinances and minor criminal matters.

For most citizens, it is their only exposure to the courts and judges of this State. As Chief Justice Stuart Rabner said, “Most interactions between the public and the Judiciary take place in the municipal court system. Millions of people who come into contact with the municipal courts each year form their impressions of the justice system based primarily on those interactions.”

NJ Supreme Court Chief Justice Stuart Rabner charged a special committee to examine complaints about New Jersey’s municipal courts. The committee’s report released on July 17, 2018 issued recommendations to improve the overall operations of municipal courts and to make sure that the process is transparent and fair to the public.

One area of great concern is that municipal courts are great sources of revenue for the towns, imposing fines and fees from tickets to support their local budgets. When towns rely on fines and fees, it calls into question the overall fairness of the system. The 28-member committee, comprised of judges, court staff and attorneys who regularly practice in municipal court, made 49 specific recommendations addressing a number of concerns. The committee identified three “significant areas of concern” about municipal court operations:

• Excessive imposition of financial obligations on certain defendants
• Excessive use of bench warrants and license suspensions as collection methods, and
• Excessive use of discretionary contempt assessments

The committee discovered that many courts imposed jail sentences on people that could not pay their fines and costs for parking and traffic tickets, and that others did not properly allow for reasonable payment plans. Currently there are 2.5 million outstanding municipal court bench warrants for failure to appear and failure to pay. These warrants often involve minor offenses and minimal amounts owed. The cost and collateral consequences in the enforcement of these warrants can be devastating to individuals and families. In addition, many driver license suspensions result from the failure of motorists to pay their court-imposed fines and penalties, rather than excessive points for bad driving.

For disorderly persons offenses, petty disorderly persons offenses, and local ordinances (including most parking offenses), all fines go to the municipality. For traffic offenses, one-half of the fine money goes to the municipality, with the other half going to the county. For local ordinance violations, municipalities may set their own fine amounts or ranges within the statutory maximum and collected fines go to the municipality. In 2017, more than $400 million was collected, with more than half of that total being turned over to municipalities.

The committee also recommended the establishment of uniform standards for the selection of municipal judges and recommended independence in the hiring process by establishing qualifications committees for selection.

Why is this important?

While many municipal court judges are hard-working, fair and independent jurists, the committee found that a system of political appointments by mayors and town councils can lead to judges that are mindful of the political party that appointed them and their importance in raising funds for the town.

Other potential abuses can occur when a municipal judge is more concerned about his or her reappointment than a fair and just result. Since municipal judges are appointed to 3-year terms, there is a concern that the public perception could be one that the judge sides with the officer over the citizen.

Such concern calls into question the independence of the judge in making factual determinations at hearings and trials since there are no juries in municipal court. The report noted that there is no uniform appointment or reappointment process or procedure utilized in the State of New Jersey, and, similarly, there is no uniform salary requirement, as most positions are part-time. Municipal judges are paid annual salaries set by ordinance or resolution of the establishing county or municipality.

Given that the average citizen is much more likely to appear in municipal court rather than State Superior Court, it is imperative that the process be open, transparent and fair. The recommendations of this committee, if carried out, will be a significant step forward in improving our municipal courts.

Robert Stahl, and his firm, 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.

Though the decision received little press coverage, it will drastically affect thousands of civil and criminal domestic violence actions in New Jersey courts.

In State v. Burkert, decided on December 19, 2017, the New Jersey Supreme Court determined that New Jersey’s broadly-written harassment statute could not be squared with the First Amendment to the United States Constitution, which protects the right to voice “offensive discourse, hateful ideas, and crude language” in the name of a free flow of ideas. Rather than strike down the statute as unconstitutional, however, the Court in Burkert chose to rewrite it, effectively decriminalizing the type of non-violent and non-threatening verbal assaults that too often had formed the basis of criminal or civil domestic violence charges. Though the decision received little press coverage, it will drastically affect thousands of civil and criminal domestic violence actions in New Jersey courts.

Burkert arose out of a conflict in the workplace. The defendant, a corrections officer at the Union County Jail, littered the jail with fliers depicting a co-worker’s wedding photos with added sexually-charged, personally offensive comments. The defendant was convicted of harassment, which makes it a criminal offense to “engage in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person” with the purpose to “harass.” In other words, the statute allowed a criminal conviction for the purposeful “harassment” of another as long as the defendant’s intent was to “alarm or seriously annoy.”

Justice Albin, writing for the Court, explained that the harassment statute was never intended to criminalize “the common stresses, shocks, and insults of life that come from exposure to crude remarks and offensive expressions” or to “enforce a code of civil behavior or proper manners.” The vague language of the harassment statute failed to “put a reasonable person on sufficient notice of the kinds of speech that the statute proscribes.” To save the statute from unconstitutionality, the Court chose to effectively rewrite the statute by construing the “any other course of alarming conduct” and “seriously annoy” language as “repeated communications directed at a person that reasonably put that person in fear for his safety or security or that intolerably interfere with that person’s reasonable expectation of privacy.”

Thus, the new touchstones of non-violent harassment are (1) a reasonable fear for one’s safety, or (2) an “intolerable interference” with one’s reasonable expectation of privacy. An attempt to “seriously annoy” will no longer support a harassment charge.

Choosing the right attorney to represent you in a serious criminal investigation, arrest or Indictment, is critical to the outcome and potentially the client’s freedom. While many lawyers advertise that they “handle all types of criminal matters,” upon closer examination you may likely find that these firms are generalists that handle motor vehicle tickets, minor drug charges, divorces, personal injury and the like. That may not be the firm that you would entrust your freedom to.

So, what should a prospective client look for? First, does the attorney or firm have the experience and background in the type of crime that you are being investigated for? Many top flight criminal defense lawyers began their careers as prosecutors. The advantage is that as young prosecutors, they had the time and training to learn how investigations begin, how they are put together, where the weaknesses lie and how to try a case. Those same skills are later honed and used to defend the client being charged or investigated. In addition, former prosecutors learn how charging decisions are made and what can be reasonably expected during the various phases of a case.

Second, is the lawyer’s practice devoted to criminal defense? Like anything else in life, there is no substitute for practice and repetition. A lawyer who devotes most or all of his time to criminal defense stays current on the case law, practice, developing trends and the positions taken by most prosecutorial agencies. If an attorney only dabbles in criminal defense, they cannot possibly know the system, prosecutors and judges the way someone who specializes in criminal defense does.

Third, is the lawyer a Certified Criminal Trial Attorney? In the State of New Jersey, an attorney with the requisite skill, experience, background and ethics can become Certified by the Supreme Court of New Jersey.[i] Only 1% of the attorneys in New Jersey are Certified. By hiring a Certified Attorney, a client can be more assured that the lawyer has the trial experience and background to defend them at what is one of the most stressful times of their lives.

Fourth, if the case is federal, does the lawyer have substantial experience in federal criminal cases? The federal system is vastly different than the state system. In federal cases, the client and lawyer are entitled to only limited discovery – the evidence against the client – unless the trial has been scheduled and is weeks away. In the federal system, the lawyer must conduct his own investigation and rely on his ability to persuade the Assistant U.S. Attorney and agents to tell him about the case and the evidence against the client. In contrast, the state system is basically “open book” discovery where post-indictment the client is entitled to just about everything the prosecution has in its file. In addition to the differences in discovery, there are tremendous differences in plea negotiations, motions’ practice and sentencing.

The attorneys at Stahl Gasiorowski Criminal Defense Lawyers have extensive experience in serious federal and state criminal cases. The founder of the firm, Robert Stahl, is a Certified Criminal Trial Attorney by the Supreme Court of New Jersey and a former Assistant U.S. Attorney who tried some of the largest fraud and tax cases in the District of New Jersey. He has been defending serious cases in federal and state courts for more than 25 years. Laura Gasiorowski is recognized for her skills at crafting successful federal pre-trial motions, trial and appellate briefs in a host of notable cases. Andrew Olesnycky has been involved in a number of significant federal cases and has been appointed to the federal Criminal Justice Act Panel to represent indigent defendants in federal court.

_{[i] To become Certified in New Jersey, the lawyer:}

• _{[i] has been a member in good standing of the New Jersey Bar for at least five years;}
• _{has taken a specific number of continuing legal education courses in the three years prior to filing an application;}
• _{demonstrates substantial involvement in preparation of litigated matters;}
• _{demonstrates an unblemished reputation by submitting a list of attorneys and judges who will attest to the applicant’s character and ability; and passes a written examination covering various aspects of practice in the designated specialty.}

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 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 rgs@sgdefenselaw.com.