Law Providing Superior Court Judges To Now Waive or Reduce Parole Ineligibility or Grant Probation for Drug-Free School Zone Offenses Under Certain Circumstances.

Being charged with a CDS offense in New Jersey is serious, and the possibility of being sentenced to jail even for the first offender is a possibility.  However, recent case law has made it easier for the sentencing judge to now waive some of the previously mandatory sentencing provisions.

N.J.S.A. 2C:35-7 provides that upon conviction of a 1000 foot school zone offense the sentencing court most sentence the offender to a period of incarceration with a period of parole ineligibility from between 1/3 to ½ of the sentence imposed, or one year which ever is greater.  However, this statute has been amended to permit the trial judge to sentence a person convicted of a drug school offense to waive the mandatory sentence if the court determines that a number of favorable factors are present which weight against the imposition of sentence.  In the event that some or all of these factors are present the court may waive or reduce or the period of parole ineligibility or even sentence the defendant to a period of probation.  Said considerations include: (1) defendant’s prior criminal record and seriousness of the offense; (2) specific location within the school zone and whether any children were present; and, (3) whether school was in session.  The court cannot waive the mandatory jail and parole ineligibility if the defendant used or threatened violence, was in possession of a firearm, or committed a violation of subsection b. of N.J.S.A. 2C:29-2.

If you are charged with a school drug offense or any or drug offense in New Jersey you are advised to immediately seek the counsel of a competent and vigorous criminal trial narcotics attorney and the Law Office of Vincent J. Sanzone, Jr.  For 21 years Mr. Sanzone has successfully defended many individuals charged with serious.

Law Office of Vincent J. Sanzone, Jr.

New Jersey Criminal Defense Attorney, Winning the Drug Case in New Jersey, Union County Drug Trial Attorney, Elizabeth Drug Trial Attorney.

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December 1, 2011

The Need for New Jersey to Comply with our Obligations under the Vienna Convention on Consular Relations and the U.N. Charter.

The United States of America is a signatory of the Vienna Convention on Consular Relations. 

Pursuant to Article 36 of treaty upon the arrest of a foreign national within the boundaries of the U.S. and its territories, that law enforcement immediately notify the defendant's embassy of the arrest of one of their citizens.

The treaty which we are obligated to enforce under international law makes no distinction between federal, state and local law enforcement officials.

In 2004 the International Court for Justice in The Hague, in which we are obligated to obey under international law, ruled that a death row inmate in Texas, Humberto Leal Garcia, Jr., and other death row inmates in the United States, must be granted by the American courts “review and considerations” to determine whether their criminal cases were hurt by the failure of local authorities to allow the defendant to consult their respective consular officials.  On May 17, 2004 the United States Congress issued its report regarding the U.S. requirements and implementation of the treaty. http://www.fas.org/sgp/crs/row/RL32390.pdf

In the Leal Garcia murder trial Mr. Garcia was appointed a public defender who did little to defend his client, or attempt to mitigate the penalty portion of the trial to save Mr. Garcia’s life.  Also, in that case the Mexican embassy was never notified of Mr. Garcia’s arrest, and they never had an opportunity to  determine whether to aid in his death penalty trial.

As a practical consideration in New Jersey for all criminal defense attorneys handling post conviction appeals for ineffective assistance of counsel, or other claims or issues, it is essential that in all such cases in which the defendant received a sentence of substantial magnitude that defense counsel examine and investigate this issue to determine whether the failure of law enforcement to notify the defendant’s embassy detrimentally affected their criminal cases.

Unfortunately in New Jersey like most other states law enforcements are not familiar with the requirements of Article 36 of the treaty, and if they are simply ignore it.

Because Texas has blatantly refused to honor the treaty and the judgment by the International Court, the United Supreme Court decided in 2008 ruling that the States were obligated to comply with the treaty and the international law judgment for review of all death penalty cases in which the defendant’s consulate was not informed of the arrest.

However, the Supreme Court also held that the President could not enforce the treaty by executive order without congressional approval.  Although the bill was submitted to the Senate the bill is not yet law, and it is not expected to be signed until after Mr. Leal Garcia is scheduled to be executed on July 7, 2011.  It is now up to the Federal District Court in San Antonio to stay the execution until the bill is passed by Congress.

Law Office of Vincent J. Sanzone, Jr.
Elizabeth, New Jersey

(908) 354-7006

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“If you want peace work for justice.” Pope John Paul, I.

A Surrogate Lab Technician Does Not Satisfy the Sixth Amendment Confrontation Clause in Criminal and Quasi Criminal Cases in New Jersey

April 29, 2011, the Appellate Division in State v. Rehmann held that the Confrontation Clause of the United States Constitution requires that the State produce the person who actually performed the forensic test, or, as in this case, the person who witnesses the test being performed, and certify that all the proper steps were performed, before an laboratory report will be admitted into evidence.

In this case the State proffered the testimony of a State lab technician in a DWI blood case for the purpose of presenting the defendant’s blood alcohol level (or BAC) was above the legal limit. However, the State in this case did not actually produce the technician who performed the gas chromatograph test but rather his supervisor who witnessed the test being performed. Under these circumstances the Court ruled that the supervisor was not a surrogate witness and because he actually witnessed the proper procedure being performed could accordingly testify without violating the defendant’s Sixth Amendment right to confront witnesses against him.

Although this was a narrow ruling limited to the facts of this particular case, this case however reaffirmed the well stated rule of law in New Jersey that any lab report is inadmissible hearsay without the testimony of the forensic lab technician.

Law Office of Vincent J. Sanzone, Jr.

P.O. Box 261

277 North Broad Street

Elizabeth, N.J. 07207

Tel. No. (908) 354-7706

CriminalDefenseNJ.com

Police use of the Phenolphthalein Test a/k/a Kastle-Meyer Test to Determine the presence of Blood Not Admissible in New Jersey.

On May 13, 2011 the Appellate Division in State v. Pittman ruled that Phenolphthalein Test, a/k/a Kastle-Meyer Test is inadmissible to prove the presence of blood.

In this case a police detective took a cotton swap from the defendant’s clothing to determine whether the defendant’s cloths had the presence of blood. The Court ruled that there is no evidence that this test was generally accepted in the scientific community. Accordingly, although this test is useful tool in a preliminary investigation of the presence of blood, such a test is not admissible in court, without the testimony of an expert witness by the state. Although some states have allowed the admissible of this test it is based on specific jury instructions which concede that false positives can be triggered by potatoes, rust, bleach, red beet and tomatoes, as well as other common substances.

For a full discussion of this test by the State Police Forensic Laboratory go to:

http://www.state.nj.us/njsp/divorg/invest/Criminalistics.html.

Law Office of Vincent J. Sanzone, Jr.

P.O. Box 261

277 North Broad Street

Elizabeth, N.J. 07207

Tel. No. (908) 354-7706

CriminalDefenseNJ.com