May 9

Dangers Of Giving Legal Advice When Faced With Criminal Charges

I do not generally blog on malpractice but this case involves an attorney not experienced in criminal law giving bad advice which led to a malpractice case being filed against him. Mecca, a West Paterson solo practitioner was contacted in 1994 by an existing client Andrew Totoli who was arrested after his auto body shop was raided by federal agents in connection with a narcotics investigation. Mecca said he consulted with a criminal defense lawyer prior to advising his client to cooperate and give statements to law enforcement. Later, a different attorney negotiated an agreement whereby Totoli provided testimony against co-defendants and pleaded guilty to a conspiracy charge. He was sentenced to two years in prison and five years probation. Totoli then sued Mecca claiming that his custodial sentence was based in part on information he provided to law enforcement at Mecca’s recommendation. No experienced criminal defense attorney would ever recommend cooperation or making statements absent an agreement or immunity. While Mecca was ultimately found not to have committed malpractice, it was because Totoli could not prove that without the statements he would have been found not guilty or have gotten a lesser sentence. This case illustrates the danger in seeking advice from a general practitioner when faced with criminal charges. If you are ever charged with a crime, seek the advice of an experienced criminal defense attorney.

May 9

Man Fathered Only One Twin

In a ground breaking decision, a family court judge found that a man who had been identified as the father of twin girls had in fact only fathered one of them. The ruling from Judge Sohail Mohammed in Passaic County ruled that the man was only required to pay child support for one of the children. DNA testing proved only one of the children was his child. Paternity testing was done by Laboratory Corporation of America and testimony was taken from Karl-Hanz Wurzinger, director of the Identity Testing Division. Wurzinger testified that the twins were born from two eggs that were fertiilized from different fathers during the same menstrual cycle. One in approximately every 13,000 parternity cases involve twins with seperate fathers, according to the Mohammed’s ruling. The mother admitted during the hearing sha had had sex with two men during the span of a week when she got prengant. As such, the Judge dismissed with prejudice the application to find that the father was required to pay child support for the other child.

May 2

Police Intentional Recording Of Attorney Client Conversation Not Enough To Kill Indictment

In State v. Mazzarisi, the Appellate Division held that while the officers were prohibited from testifying and the conversation had to be excluded from trial, the intentional recording of an attorney client conversation was not enough to quell the prosecution and dismiss the indictment. In this case, the attorney brought the defendant to the police station to surrender him on charges fo attempted murder and related offenses. Upon arrival, they were placed in a room awaiting a dectective. As soon as they were placed in the room, police turned on a recording device withouth their knowledge and recorded the conversation of the attorney and defendant while they were alone in the interview room. Thereafter, defendant invoked his Fifth Amendment right not to make a statement. No information was was derived by the conversations and the record revealed that no further investigation was prompted by the conversation. No harm, no foul.

But the Court did exclude the officers testimony at trial and the state was prohibited from using any information obtained from the recorded conversation. The Court concluded this was not the case presented in State v. Sugar where the conversations led to search warrants where incriminating evidence was obtained and sought to be used against the defendant. In Sugar, the Court found a Sixth Amendment violation, but here because the conversations did not reveal defense strategy and the defendant would not suffer any prejudice at the time of trial, the indictment would not be dismissed and the case could proceed.

This is why most seasoned attorneys would never engage in conversation in a police station. I always tell my clients, we will talk when we get back to the office.

April 27

Domestic Violence Accusation Enough To Deny Gun Permit

In perhaps the most misguided decision this year, the Appellate Division eviscerated the Second Amendment of the United States Constitution and, in my opinion, negated the presumption of innocence. On April 22, 2015, the New Jersey Appellate Division ruled that a person ACCUSED of domestic violence and not convicted can still be denied a gun permit. WHAT? There is no disputing that the domestic violence statute is the most abused statute in the State of New Jersey. As acknowledged in State v. Hoffman, the domestic violence statute is commonly used “as a sword and not a shield”. There is no authority in the State of New Jersey for a court to order someone off their property in the absence of domestic violence. Often during a divorce when a spouse wants their soon-to-be Ex out of the house or is seeking to gain an advantage in a divorce case, false allegations of domestic violence are made. Moreover, many times there are mulitiple false allegations spanning different dates. Just because the police are called and respond to a domestic dispute does not mean an act of domestic violence was committed until there is a hearing and a finding of guilt.

But now we have the Appellate Division saying the mere, be it false, accusation of domestic violence can result in the denial of a gun permit. The justification is under the generic section of the statute which allows for a denial if there is a possible danger to “public, health, safety and welfare”. Since when is a false or unsubstantiated allegation a danger to public health, safety and welfare? Judge John Kennedy stated that the applicant in this case has shown “the potential for violent reaction”. Really – by being acquitted of domestic violence charges??? This decision must be appealed. This marks a substantial erosion of our fundemental rights and, if allowed to stand, who know what rights the Appellate Division may take away next. Perhaps this is a prelude to the Appellate Division ruling we do not have a right to trial at all! After all, who needs the right to trial, when we can assume guilt by accusation? How absurd.

Read the story here as written in the Star-Ledger. And feel free to share this blog.

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