Court Reverses Conviction Holding Identification of Defendant By His Large Penis by Victim was Prejudicial

Prepared as a Public Service by the Law Office of Vincent J. Sanzone, Jr., Esq.

In State v. Pena, Mr. Pena received some good news when the appellate division held that testimony of a prior case regarding Pena’s penis was prejudicial.  In this case Mr. Pena was charged with first-degree sexual assault when it was alleged that he inserted his finger inside her.  In this case the victim, E.D. claimed that she could identify him based among other things on the abnormally big penis. 

At trial the defendant presented pictures of his 4-inch penis and argued that in fact he had not an abnormally large penis but an abnormally small one.  Initially, the trial judge ruled that the pictures were not relevant, but on interlocutory appeal, the pictures were admitted at trial. 

Unfortunately, at trial the trial judge also allowed the prosecutor to introduce evidence regarding a prior lewdness conviction in which Mr. Pena’s seize was an issue.  In that case the witness reported that while erect Mr. Pena’s penis was 8” in length. 

The appellate division reversed the conviction holding that the trial court misapplied and did not make proper findings as to why the other crimes 404b evidence should have been admitted.  Because it appeared from the record that the trial judge allowed the evidence to refute the defendant’s contention that he had a small (identity) penis. 

This reversal seems to be of questionable validity since 404b evidence can be introduced to prove identity, and at first glance it appears that the trial judge made a correct call.   Obviously, this conviction did not sit well with the appellate division panel and hence, this is what they hung their reversal on.  

Law Office of Vincent J. Sanzone, Jr., Esq.

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Cross-Examination of Prosecution Intent To Distribute Expert

Prepared as a Public Service by the Law Office of Vincent J. Sanzone, Jr.

In New Jersey state court prosecution of defendant's charged with possession with intent to distribute,  similar to federal prosecutions, the state is permitted to introduce testimony from a law enforcement officer in their organization that the defendant possessed the contraband drugs not for personal use but with intent to distribute.

On might ask the logical question as to how this so-called expert is able to testify as to the intent of another.  Of course, few people have the ability to read the mind of some else.  In fact, in truth, most people cannot read their own mind with any reliability.  However, the state or government is permitted in having its so-called "expert witness" testify as to mind of another.  In reality, the state or government expert will always testify that the quantity of drugs seized is consistent with intent to distribute and not for personal use.  The expert will give this conclusion without knowing anything about the drug usage and habits of the defendant.

The courts have attempted to mitigate this powerful testimony with the legal fiction that the expert can only testify in the form of a hypothetical question, and not refer to the defendant by name.  The courts have decided that somehow this protects the defendant from the expert giving an ultimate opinion about the guilt of the defendant.  This meeker attempt to protect the defendant from the expert's opinion of guilt fails miserably and is no use to the defendant, because everyone in the court room knows who the expert is talking about, since he recites as the basis of his opinion, the facts elicited at trial.

In cross-examining these witnesses it is always important that the attorney stress, that this is in fact his or her opinion only.  That no empirical testing has been done to disprove or disprove his or her theory.  That no peer review was done with this opinion.  That no supervisor reviewed his or her opinion.  That the expert receives his or her paycheck from the same source as the prosecutor.  That they work in the same office.  That they never testified for the defense.  That the opinion is only as good as the investigation conducted.  That they have not done any independent investigation.  That they have not reviewed the defendant's medical records.  That they have not reviewed the defendant's treatment records.  That they never attempted to interview the defendant as to his drug use, and how long he or she has been using drugs.  Never attempted to interview family members of the defendant.  The list goes on and on.

If you have been charged with a drug offense, either with possession, distribution or intent to distribute case you are urged to contact the Law Office of Vincent J. Sanzone, Jr., Esq.  An experienced and successful New Jersey criminal defense attorney, serving all state courts.  Union, Essex, Hudson, Morris, Middlesex, Bergen counties.