Saturday, June 21, 2014

DNA samples from those who toke but not from those who possess?

June 21, 2014

Wendy S. Whitbeck, OLS Aide
Senate Law and Public Safety
via web form electronic correspondence

RE: Senate Bill 393

Dear Ms. Whitbeck:

I have a question about whether the narrow scope of the amendments the Committee made to the captioned bill at Thursday's hearing was intentional or the result of oversight.  I would appreciate if it you would respond to my inquiry or pass it on to someone, perhaps a Committee member, for a response.

Senate Bill No. 393, which was reported out of the Senate Law and Public Safety Committee on June 19, 2014, seeks to expand New Jersey's "DNA database to include samples from disorderly persons who are fingerprinted."  Under current law, only those who have been convicted of indictable offenses are required to provide a DNA sample to the database.

As a result of its June 19, 2014 hearing, the Committee removed two specific disorderly persons offenses from the list of those for which DNA samples must be provided.  Those offenses are shoplifting and "possession of 50 grams or less of marijuana, including any adulterants or dilutants, or five grams or less of hashish."  Remaining in the list of compelled DNA donors, however, are those who are convicted of "any disorderly persons offense relating to narcotics or dangerous drugs for which a person is required to be fingerprinted pursuant to [N.J.S.A. 53:1-18.1]."  I have read N.J.S.A. 53:1-18.1 and have determined that it covers every drug offense.

Other than the offenses of possession of 50 grams or less of marijuana and possession of 5 grams or less of hashish, both of which are prohibited by subsection (a) of N.J.S.A. 2C:35-10, I found two other disorderly persons offenses that "relat[e] to narcotics or dangerous drugs."  Those offenses, are:
1) being "under the influence of any controlled dangerous substance" for other than a medically prescribed purpose, in violation of N.J.S.A. 2C:35-10(b), and

2) failing to voluntarily and immediately deliver to the nearest police station any CDS that is found or otherwise comes into a person's possession, in violation of N.J.S.A. 2C:35-10(c).
Was it the Senate Law and Public Safety Committee's intent to require DNA samples from those who are convicted of offenses under subsections b and c of N.J.S.A. 2C:35-10 while not requiring DNA samples to be taken from those convicted of subsection a of the same statute?

I believe that this may have been an oversight, as it seems incongruent for the Committee to demand DNA samples from those who are intoxicated from having smoked a marijuana cigarette but not from those who possess the same marijuana cigarette prior to it being smoked.

While I have a difficult time putting myself into the mind set of a person who still believes that marijuana should still be illegal, I would imagine that such a believer would find possession of marijuana to be a more serious offense than ingesting the substance, given that the possessor might be looking to sell the marijuana while those who are ingesting it are obviously just engaging in personal use.

Thank you for your attention to this matter.

Very truly yours,

John Paff
P.O. Box 5424
Somerset, NJ  08875
Voice: 732-873-1251
Fax: 908-325-0129
e-mail: paff@pobox.com

Friday, June 20, 2014

Apparent investigation of Cape May County Sheriff Gary G. Schaffer

Update:  The State Police denied my request because "the record(s) [I] seek is part of a criminal investigation, and is therefore exempt from public access."  See State Police response here.
After hearing rumors that Cape May County Sheriff Gary G. Schaffer had been investigated by the Ocean County Prosecutor's Office for various alleged improprieties (it was rumored that the Cape May Prosecutor was conflicted from conducting the alleged investigation), I submitted an Open Public Records Act (OPRA) request to the Ocean County Prosecutor for records that would either confirm or dispel these rumors.

The Ocean Prosecutor, however, did not deny that such an investigation took place.  Rather, Assistant Prosecutor O. Nicholas Monaco confirmed that there was such an investigation that had been "taken over by the New Jersey State Police (NJSP) immediately after this office began investigating the matter."  (What is confusing about Monaco's letter is that he refers to an investigation related to the "former Cape May County Sheriff" even though Schaffer is presently the Sheriff with a term to expire on December 31, 2014.)

My OPRA request and Monaco's response are on-line here.  I have made a subsequent request to the New Jersey State Police for more information.  I have also written to Sheriff Schaffer and asked him to comment on this issue.  I will report any responses I receive from either the State Police or Sheriff Schaeffer.

Wednesday, June 18, 2014

Wildwood Mayor's son's brother-in-law receives improper and favorable plea deal.

June 18, 2014

Robert W. Johnson, First Assistant
Cape May County Prosecutor’s Office
4 Moore Road
Cape May Court House, NJ 08210
(via e-mail only to rjohnson@cmcpros.net

RE: Complaint regarding Stone Harbor Municipal Court

Dear First Assistant Johnson:

I write, both individually and in my capacity as Chairman of the New Jersey Libertarian Party’s Preempted Ordinance Repeal Project to complain that the Stone Harbor Municipal Court recently allowed a plea bargain that violated a November 18, 1998 Directive by former Attorney General Peter Verniero.  A copy of that three-page Directive, accompanied by subsequent distribution memoranda, is on-line here. I bring this matter to your attention because the County Prosecutor’s office has supervisory authority over municipal prosecutions and may, in the public interest, intervene or supersede them.  N.J.S.A. 2B:12-27 and 2B:25-7.

The Attorney General’s Directive, in essence, disallows a municipal court from agreeing to a plea bargain in which a defendant charged with a statutory offense pleads down to a municipal ordinance violation unless a) the municipal ordinance is clearly not preempted by state law and b) there is a factual nexus between the conduct charged and that which is proscribed by the ordinance.

At issue here is a citizen's complaint filed against Michael A. Blanda, who is Wildwood Mayor Ernie Troiano's son's brother in law, for simple assault and harassment.  (A copy of the complaint's disposition in on-line here.) Given Blanda's employment with the City of Wildwood and his relationship to Mayor Troiano, the matter was transferred to the Stone Harbor Municipal Court.  On June 5, 2014, the court accepted a plea bargain under which Blanda agreed to pay a total of $533 in fines and costs and attend anger management classes.  As part of the plea agreement, the assault and harassment charges were dismissed and Blanda pleaded guilty to Wildwood Code §4-2.7, which states:
Disruption of Public Peace

No individual or group of individuals shall revel, disport, or behave in a noisy, boisterous manner, emitting loud cries and other noises, jostling those about them, causing inconveniences to those about them, or otherwise disrupting or disturbing the public peace and dignity in any public or quasi-public place and public rights-of-way, or in any building open for the combination of the public for entertainment or room accommodations.
This ordinance is preempted by the New Jersey Criminal Code because it covers the same type of conduct regulated by N.J.S.A. 2C:33-2--Disorderly Conduct which states:
a. Improper behavior. A person is guilty of a petty disorderly persons offense, if with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof he
(1) Engages in fighting or threatening, or in violent or tumultuous behavior; or

(2) Creates a hazardous or physically dangerous condition by any act which serves no legitimate purpose of the actor.
b. Offensive language. A person is guilty of a petty disorderly persons offense if, in a public place, and with purpose to offend the sensibilities of a hearer or in reckless disregard of the probability of so doing, he addresses unreasonably loud and offensively coarse or abusive language, given the circumstances of the person present and the setting of the utterance, to any person present.
"Public" means affecting or likely to affect persons in a place to which the public or a substantial group has access; among the places included are highways, transport facilities, schools, prisons, apartment houses, places of business or amusement, or any neighborhood.
In State v. Paserchia, 356 N.J. Super. 461, 466 (App.Div.2003) the Appellate Division found that Chapter 33 of the New Jersey Criminal Code “reveals a policy to comprehensively address street behavior and other conduct in public places which may disturb citizens and disrupt peaceful society.” The Legislature, the court found, recognized the tension between controlling “street behavior” and safeguarding citizens’ free speech and assembly rights. Therefore, it decided to regulate “street behavior” so comprehensively at the state level that there was no room left for local regulation of the same conduct. For this reason, ordinances like Wildwood's §4-2.7 cannot stand. 

Moreover, it would not be proper for Wildwood to be allowed to prohibit certain types of conduct per se when the the Criminal Code requires the state to prove that the defendant acted either "recklessly" or "with purpose to cause public inconvenience."  "[T]he inconsistency between the culpability standards of N.J.S.A. 2C:33-2.1 and the . . . ordinance only underscores the point that the Code and the local ordinance deal with the same criminal conduct in a different manner, and consequently the ordinance is preempted."  State v. Felder, 329 N.J.Super. 471, 475 (App. Div. 2000).

In sum, Blanda was wrongly allowed to plead guilty to a municipal ordinance instead of having to contest the statutory charges.  This plea agreement gave Blanda some significant benefits:
  • Freedom from having a statutory conviction that can be detected if a future prospective employer, licensing agency or volunteer organization seeks criminal history record information (CHRI).
  • Statutory disorderly and petty disorderly persons convictions cannot be expunged from a defendant’s record until at least 5 years after the conviction while municipal ordinance convictions can be expunged after 2 years.  N.J.S.A. 2C:52-3 and 4.
  • Avoidance of $50 Violent Crimes Compensation Board and $75 Safe Neighborhoods Services Fund assessments that those who are convicted of statutory offenses must pay.
These benefits motivate offenders such as Blanda to plead guilty and pay hundreds of dollars in fines and costs to the City. The City, of course, is happy to have this lucrative stream of revenue and the municipal prosecutors and judges are appreciative of the guilty pleas because they don’t have to conduct trials, which are sometimes time-consuming and difficult.

The loser in this cozy arrangement, however, is the integrity of the criminal justice system.  This deal-making undoubtedly gives the public the perception that the Stone Harbor Municipal Court is more akin to the “Let’s Make a Deal” game show than a serious judicial entity.

The Stone Harbor Court's acceptance of such plea bargains allow offenders to escape accountability for their actions. Had Blanda been convicted of assault or harassment offenses which which he was charged, the court would have afforded him a “presumption of non-incarceration” if he was a first offender but if it was his second, third or greater offense, he would no longer receive that presumption and would have more likely faced incarceration. N.J.S.A. 2C:44-1(e) and State  v. LeSane, 227 N.J. Super. 276 (Law Div.1987).  This is what the Legislature intended.  First offenders should receive leniency while those who continue to commit criminal acts should receive progressively harsher punishments.

Stone Harbor's allowance of this type of guilty plea disrupts the Legislature’s intent by preventing those who are actually guilty of statutory offenses from being identified in New Jersey's criminal conviction database as previous statutory offenders. Given the plea bargain, if Blanda re-offends in another municipality the judge presiding over the second offense would not recognize him as repeat offenders and again assume that he shouldn’t be jailed because he is a first offender.

The Attorney General's Directive limits municipal courts to three options when dealing with a defendant charged with a statutory disorderly persons or petty disorderly persons offense: a) try the defendant on the charge, b) dismiss the charge outright or c) downgrade the charge to lesser statutory offense or to a violation of a municipal code provision that is not superseded and for which a factual nexus exists . Pleading Blanda down to a preempted city code provision is not among the options.

Maintaining the integrity of the criminal justice system is a far more important goal than the municipal court’s administrative convenience. Accordingly, I call upon you to give effect to Attorney General Verniero’s Directive by instructing the Stone Harbor Court to cease the practice of allowing guilty pleas to superseded provisions of a municipal code.

Thank you for your attention to this matter.  I look forward to hearing from you.

Sincerely,

John Paff, Chairman
New Jersey Libertarian Party's
Preempted Ordinance Repeal Project
P.O. Box 5424
Somerset, NJ  08875
Voice: 732-873-1251
Fax: 908-325-0129
e-mail: paff@pobox.com
 

Tuesday, June 17, 2014

Lakewood cop appeals four-day unpaid suspension

On December 30, 2013, a Lakewood Township (Ocean County) police officer appealed a judge's decision to uphold a four-day unpaid suspension that was levied against the officer for driving his patrol car in an unsafe manner, leading to a September 28, 2012 collision with another patrol car.  According the court filings, the same officer had received a two-day suspension in April 2012 for the another instance of driving a patrol car in an unsafe manner.

An Internal Affairs investigation found that the officer, Dennis Dowden, was following Officer Jeremy Felder's patrol car when both officers were dispatched to a robbery where the victim was chasing the perpetrator.  Felder, missing a turn, hit his brakes to turn around and Dowden, who said he was unable to see Felder's brake lights, slid into the rear of Felder's car doing about 35 mph.  Dowden admitted fault in the accident but attributed it to failure of the ABS brake system and the rainy weather.  Given that he was "responding under emergent circumstances to an armed robbery in inclement weather conditions where the dispatch had advised that the victim was in pursuit of the perpetrator," Dowden argued that the collision "should be more properly viewed as accidental in nature."

In an October 25, 2013 written decision, Ocean County Assignment Judge Vincent J. Grasso disagreed.  Grasso found credible Captain Paul Daly's testimony that the "officers were travelling approximately sixty (60) miles per hour in rainy weather conditions on wet road surfaces."  The court found sufficient evidence that Dowden did not proceed with proper caution and due regard for the safety of persons and property.  Grasso decision and other court filings are on-line here.

Dowden, represented by Stuart J. Alterman of Marlton, appealed Grasso's ruling after an unsuccessful attempt to have Grasso reconsider it.  In his appeal, he argues that there was insufficient evidence to warrant the suspension and that the suspension was improper because it was "restitutionary in nature."

Saturday, June 7, 2014

NJ Senate Committee to mull change to bail guarantee.

Article I, Section 11 of the New Jersey Constitution currently guarantees that those arrested for crimes other than murder are entitled to be released on bail.

On Thursday, June 12, 2014 at 10 a.m., the Senate Law and Public Safety Committee will consider Senate Concurrent Resolution (SCR) 113 which seeks a constitutional amendment permitting courts to deny bail for certain reasons.

If SCR 113 and ACR 163, an identical resolution introduced in the New Jersey General Assembly, passes both legislative houses, voters will decide whether to permit the courts to deny bail if the court finds that no amount of monetary bail or non-monetary conditions of pretrial release would:

1. reasonably prevent the defendant from fleeing, or

2. protect the public's safety or prevent the defendant from obstructing or attempting to obstruct the criminal justice process.

SCR 113's primary sponsor is Senator Donald Norcoss (D-5).  The companion Assembly measure is sponsored by Vincent Mazzo (D-2), Timothy J. Eustace (D-38) and Bob Andrzejczak (D-1).

Anyone who wishes may testify in favor or in opposition to the measure by attending the Committee's hearing  in Committee Room 10, 3rd Floor, State House Annex, Trenton, NJ.

Thursday, June 5, 2014

Letter to Prosecutor regarding Fire District financial improprieties

June 5, 2014 Update: I have been informed that the matter had been reported in the newspaper.  Click here.
 June 5, 2014

Michael S. Curwin, First Assistant Prosecutor
Gloucester County Prosecutor's Office
70 Hunter Street
Woodbury, NJ 08096
Via e-mail only to mcurwin@co.gloucester.nj.us

Dear Mr. Curwin:

By way of an Open Public Records Act (OPRA) request, I have obtained a copy of the Harrison Township (Gloucester County) Fire District's August 15, 2013 "Resolution No. 13-027 Censuring Commissioner William Fox."  The censure resolution is on-line here.

In essence, the resolution requests Commissioner Fox's resignation due to various financial misstatements and other improprieties that arose during his term as Fire District Treasurer. The following allegations, however, appears to allege more than mere negligence:
  • the auditor has advised that the bank statements provided by the Fire District for review were altered and manipulated to exclude fraudulent checks issued to the former Business Administrator.
  • unauthorized checks were issued from the Fire District's operating account to the former Business Administrator in the amount of $12,586.60 in 2012.
  • unauthorized overtime was paid to the Business Administrator in the amount of $2,850.
If the findings in the resolution are true, it appears possible that some criminal liability may have been incurred by Fox, the former Business Administrator or perhaps others. 

After doing an Internet search, I can find nothing that indicates, one way or the other, whether your office had been informed of this resolution.  Accordingly, I am submitting it to you now, in case you are not already aware of it, so that you can conduct an investigation as you deem appropriate.

Thank you very much for your attention to this matter.

Very truly yours,

John Paff, Chairman
New Jersey Libertarian Party's
Open Government Advocacy Project
P.O. Box 5424
Somerset, NJ  08875
Voice: 732-873-1251
Fax: 908-325-0129
e-mail: paff@pobox.com