[02/09/11 – 12:29 pm] This morning, the Committee on Opinions approved the publication of the Law Division decision in State v. Henry. In the decision, the Court holds that the aggravating and mitigating factors set forth in NJSA 2C:44-1 of the Code of Criminal Justice apply to the imposition of a discretionary jail term in a drunk driving case. Moreover, the Court ruled that a high blood alcohol level for the defendant may properly be considered as an aggravating factor.
Download a copy of State v. Henry.
[02/09/11 – 12:46 pm] On January 28, 2011, Hunterdon County Superior Court Judge Stephen B. Rubin signed an order expunging the criminal record of a person who had previously died. The petitioner in the case, R.D. died in 2010 as the result of suicide. At the time of his death, he had several criminal complaints and a local ordinance charge pending. The expungement order will remove the arrests, as well as other entries from R.D.’s record with the police, corrections and the courts.
Somerville attorney Richard Uslan, who handled the case at the request of R.D.’s family, noted that this type of expungement is probably a first in New Jersey. “It was extremely important to the family that his name be cleared and that he can now be memorialized without the stigma of involvement with the criminal justice system,”
Uslan went on to note that, “This unique case extends the application of the expungement statute. The law already allows the criminal records of corporations to be expunged, and so long as the basic conditions have been satisfied, there is no time limit within which to file the application, either during the petitioner’s life or, as illustrated by this case, following his death. In fact, this case may even establish an additional obligation for estate attorneys to find out whether a given decedent is eligible for an expungement of criminal records that was not brought during the his lifetime and discuss this new option with the surviving family members.”
[02/13/11 – 12:46 pm] On Thursday, the Appellate Division put a stop to a common procedure that is used around the state to get otherwise ineligible defendants admitted into PTI. Known as a Dylag motion [State v. Dylag, 267 NJ Super. 348, 349 (Law Div 1993) containing the famous line, “Only painters and lawyers can charge white to black”], the procedure is meant to circumvent the limitation of just one diversion from the New Jersey criminal justice system. Typically, the defendant would have open criminal charges pending but be statutorily ineligible for PTI due to a previous conditional discharge (CD). Under Dylag, the defense attorney would return to the municipal court where the CD was granted and move under post-conviction relief to have it vacated. Once the CD is vacated, the defendant would immediately plead guilty to the old drug offense. This procedure would remove the CD and thus, the statutory bar for admission into PTI.
However, last week in State v. O’Brien, the Court ended this practice. In the O’Brien case, the defendant successfully moved to vacate a CD that was 20-years old and then sought admission into PTI. However, the Court held that mere initial admission into the conditional discharge program is all it takes to serve as a statutory bar to PTI.
Download a copy of State v. O’Brien