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The Law Office of John B. Brennan

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John Brennan is representing a defendant in a Millville murder case. This high profile case centers around an April incident on the 600 block of Dock Street in Millville where a 56-year-old local man was gunned down in the street.

John Brennan’s client is not believed to be the assailant but the defense has argued that he was at the scene of the crime. Under a new state law, the homicide charges against Brennan’s client call for him to be detained in jail unless the defense can convince a judge there are ways to release him while ensuring his future appearance at hearings.

If you have been detained in relation to a crime, it is imperative that you seek professional legal counsel. John Brennan is a South Jersey, criminal defense lawyer with the experience and knowledge to get results.

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You may need to have your record expunged and not even know it

Did you ever wonder why you didn’t get that job that you were sure you were going to get?

Did you know that a dismissed charge still will stay on your record until it has legally been expunged? Although your charge may have been dismissed the fact that you were charged is still a matter of public record. Why deal with embarrassing questions at a job interview when you can remove any hint of the incidents existence by expungement?

If you have had even the slightest brush with the criminal justice system, you need to make sure that, if possible, any evidence of that brush is eliminated.

Many people assume that because a case was dismissed that it automatically goes away. Not true!

What is an expungement?

An expungement is the extraction and isolation of all records on file within any court, detention or correctional facility, law enforcement or criminal justice agency concerning a person’s detection, apprehension, arrest, detention, trial, or disposition of an offense within the criminal justice system.

What can be expunged?

The types of records that can be expunged include complaints, warrants, arrests, commitments, processing records, fingerprints, photographs, index cards, rap sheets, and judicial docket records.

Effect of expungement

The effect of an expungement is that the event or document never occurred or existed. It is deemed by the law not to have occurred and is not a matter of public record that can be accessed by employers or the curious.  When it is said that the records are extracted or isolated it means that the records are not actually destroyed but instead, access to them is strictly limited for use by the courts, prosecutors, probation officers and department of corrections staff. Thus, access to records is limited but not in ways that tie the hands of law enforcement.

A successful applicant for expungement does not have to answer affirmatively relating to expunged criminal records, and his /her prior arrest, conviction, and related proceedings shall be deemed not to have occurred.

Important facts about expungement

A person whose conviction was expunged may possess a firearm.

An expunged domestic violence conviction allows a person applying for gun permits to have application considered as if the offense never occurred.

Eligibility

Indictable convictions can be expunged after 10 years, however, it is not available if there has been another crime or two offenses either before or after. (Expungement is not available for some serious violent crimes). In some instances, an indictable conviction can be expunged after 5 years, if it can be shown that the expungement is in the public interest.

Disorderly person offenses and petty disorderly person offenses can be expunged after 5 years, expungement is not available if more than two offenses or a crime either before or after.

Municipal ordinances can be expunged after 2 years, expungement is not available if convicted of one crime or two offenses.

Drug offense convictions for young offenders can be expunged after 1 year, expungement not available for serious drug distribution, and; not available if on parole or probation or previously accepted into supervisory treatment or other diversion.

Arrests not resulting in conviction may be expunged immediately, or six months after diversionary program. Expungement is not available for dismissals, discharges or acquittals based on insanity or mental incapacity.

If you have had a prior brush with the law that you would like to have go way through expungement call me for a free confidential  consultation to discuss whether you are eligible for this important legal process. I have the experience, the credentials and the compassion to help you with your legal issue.

Once you have legally obtained your firearm it is important to be aware of what you can and cannot do in the State of New Jersey. The biggest question is: how can I legally use my firearm?

First and foremost, New Jersey is not an open carry State, which means that even if you have lawfully obtained a gun you cannot carry it around with you anywhere you want. A permit to purchase a firearm and a firearms identification card are not permits to carry a firearm. You need  a separate permit to carry a firearm in the State of New Jersey. The laws are very strict and the penalties very severe, so you should always proceed with caution. It is imperative that every gun owner make themselves aware of the laws pertaining to guns in this state particularly if you have ever lived in another state where the laws may be less strict.

Although New Jersey has a procedure for granting open carry permits, the standard is such that it is virtually impossible to obtain one. The standard is that the applicant must establish a justifiable need to carry a firearm. The reason it is virtually impossible to obtain a permit to carry in New Jersey is that unlike other states, such as our neighbors in Pennsylvania, the New Jersey Courts have determined that self- defense is not a justifiable need.

So, if all of that is true, what is the sense of having a gun in the State of New Jersey? Although, you cannot carry a handgun in public, there are many exemptions from the law that allow legal possession and usage.

As I see it, the most important exemption is that nothing in the law “shall be construed to prevent a person from keeping or carrying about his place of business, residence, premises or other land owned or possessed by him, any firearm, or from carrying same in the manner specified by law from any place of purchase to his residence or place of business, between one place of business or residence and another when moving, or between his dwelling or place of business and place where such firearms are repaired, for the purpose of repair”. (N.J.S.A. 2C: 39-6e).

What that means is that you may have any  gun in your home for protection and you may carry it on lands owned or possessed by you without fear of prosecution. This is true even if the gun is not registered.  Although lawful self-defense is a complicated term, you may lawfully use a firearm in self-defense, in your home or on lands owned or possessed by you, if self-defense is  justified under the circumstances.  It is important to note that any gun is permitted as long as it is not an illegal gun like an assault rifle, sawed-off shotgun or defaced firearm. Those firearms are per se illegal and cannot be possessed under any circumstances.

You may have a legal firearm at your place of business as long as the business is owned by you. This is what allows a store owner to protect his/her business. This does not apply to every employee of a business. If you are working at the counter at McDonald’s or want to take a gun to your job at the mall, this exemption does not protect you. For purposes of this section of the criminal code, a place of business is deemed a fixed location.

There are also a host of exemptions for legally transporting firearms from one place to another, such as directly to or from a rifle or pistol club, gun range, hunting or fishing area, or place where guns are exhibited. Again, the rules are very strict. The gun or guns must be transported unloaded and contained in a closed and fastened case, gun box or securely tied package, or locked in the trunk of an automobile in which it is being transported. In the course of travel, you must include only such deviations as are reasonably necessary under the circumstances.

These are rules not suggestions. You cannot transport a gun, even if unloaded in the passenger area of your vehicle. Failure to transport a weapon properly, even if for an exempted purpose, will result in you being charged criminally and being exposed to all of the penalties for illegal possession of a firearm. Also, while transporting a gun, the travel must be directly to and from the locations and only reasonable deviations are permitted. So driving from Moorestown to Mount Laurel via Atlantic City would not be a reasonable deviation. What is a reasonable deviation is an objective standard, but the law requires the exemptions to be interpreted narrowly.

The right to bear arms is a constitutionally protected right that is limited in the State of New Jersey. Due to the strict laws and harsh penalties imposed in New Jersey, it is imperative that gun owners be aware of their  rights and responsibilities. In my career, I have seen people get themselves into trouble by ignorance of the law, carelessness, or a lack of appreciation of the State’s zealousness in prosecuting perceived offenders.  The penalties for unlawful possession of a firearm, including imprisonment, are mandatory.

In my former career as a prosecutor, I was responsible for the prosecution of gun offenses for over a decade. I can tell you first hand that it is very difficult to get around these mandatory penalties. So many problems can be avoided by increased awareness of the potential pitfalls of gun ownership.

I have the experience the compassion and the credentials to help you with your legal issue. If you have a legal issue with the possession or use of a firearm contact me for a free consultation.

It is a constitutional right to own a firearm. Yet many people in these troubled times that we live, in which we are seeing a spike in gun sales, are confused about what constitutes legal gun ownership and legal usage of those firearms. I am going to run a series explaining the difference between legal and illegal firearms acquisition, usage and carrying.

Who may obtain a firearm?  

No  person of good character and good repute in the community in which they live shall be denied a permit to purchase a handgun or a firearms identification card. Unless:

1)      They have been convicted of any crime or a disorderly persons offense which involves an act of domestic violence.

2)      They are a drug dependent person, confined for a mental disorder to a hospital, mental institution or sanitarium or who is presently an habitual drunkard.

3)      They are a person who suffers from any physical defect or disease which would make it unsafe for him/her to handle firearms, have been confined for a mental disorder or  are an alcoholic, unless; any of the foregoing persons produce a certificate of a medical doctor or psychiatrist licensed in New Jersey, or other satisfactory proof, that he/she is no longer suffering from that particular disability in such a manner that would interfere with or handicap him/her in the handling of firearms.

4)      They have knowingly falsified any information on the application form for a handgun purchase permit or firearms identification card.

5)      They are under the age of 18 for a firearms purchaser identification card or under the age of 21 for a permit to purchase a handgun.

6)      The issuance to that person would not be in the interest of the public, health, safety or welfare.

7)      They are the subject of a restraining order issued pursuant to the “Prevention of Domestic Violence Act of 1991”.

8)      They were adjudicated delinquent as a juvenile for an offense which, if committed by an adult would constitute a crime and the offense involved the unlawful use or possession of a weapon explosive device.

9)      They had their firearms seized pursuant to the Prevention of Domestic Violence Act of 1991 and the weapons were not returned.

N.J.S.A. 2C:58-3c

It is important to remember that the initial decision as to whether or not an applicant falls under any of these categories, which would cause their application to fail,  is made by the Chief of Police in the town you live in or the superintendent of the State Police if your town does not have its own police force. These decisions are not made by a court of law. A court of law will only get involved if an applicant is denied and wants to appeal.  As a citizen of the State of New Jersey and the United States you have the  right to have a firearm and the burden is on the State to establish that you do not have that right.  An arbitrary decision by the Chief of Police will not stand if it is not based on the statutory criteria.

As you can see, if you have an interest in having firearms, a domestic violence restraining order will seriously limit your ability to obtain one. Before entering a plea to an act of domestic violence, you must remember that once that order is entered it has no time limit and conceivably will never go away. You will be banned from legally obtaining guns until the order is dismissed or rescinded which is very difficult to do without the victim’s acquiescence. This order will stay in effect for the rest of your life.

The police routinely will arbitrarily use the clause that issuance is not “in the interest, of the public’s health safety and welfare” to deny an applicant’s constitutional right.   This rather vague standard is a catch-all provision for people who the police have determined are undesirable but are unable to articulate why. If you are denied either a permit to purchase or a firearm identification card based on this  clause, you should contact me to fight this denial. Again, the burden is on the government to prove that you are not eligible.

I cannot stress to you enough how important it is to be careful when filling out your application. An overzealous police force or one that sees you as being unworthy to give a permit to purchase will sometimes take an innocent inaccuracy or misinterpretation in your application and turn it into a “knowing falsification” of your application and try to charge you criminally. Again, call me to help you fight for your rights as a United States citizen.

I have the experience, the compassion and the credentials to help you with your legal issue. If you feel that your application for a firearms identification card or permit to purchase has been improperly denied call my office to set up a free consultation.

The free Uber program that has been so successful in Evesham (Evesham Saving Lives) has expanded to Voorhees. Residents of either town can take a free Uber ride home from any bar in the town to avoid any possibility of driving while intoxicated. The service is provided free of charge between the hours of 9 pm and 2 am, 7 days per week. The towns have already noticed a decrease in drunk driving arrests and accidents, and hope that the programs can make a lasting impact on alcohol-related offenses.

The penalties for drunk driving and other alcohol-related misbehavior that arise from alcohol consumption are too high to not take advantage of this opportunity. Please be safe and not sorry over this Holiday season. Get the New Year off to a great start by being smart about alcohol consumption.

 

Recently, many people have had their property seized without being convicted of a crime, or even charged with wrongdoing. This procedure, known as civil asset forfeiture, allows police to take cash and other property. As was recently uncovered in a report from the Institute for Justice, a nonprofit civil-liberties law firm, and reported in the Washington Post, the amounts that have been seized in recent years has skyrocketed.

The government does not measure the number of times per year that assets are seized. But one common measure of the practice is the amount of money in the asset forfeiture funds of the Department of Justice and the U.S. Treasury, the two agencies that typically perform forfeitures at the federal level. In 2008, there were less than $1.5 billion in the combined asset forfeiture funds of the Justice Department and the U.S. Treasury, according to the report. But by 2014, that number had tripled, to roughly $4.5 billion.

In one case represented by the Institute, a drug task force seized $11,000 from a college student at an airport because his luggage smelled like marijuana. They lacked evidence to charge him with any crime, but they kept the money and planned to divvy it up between 13 different law enforcement agencies, most of which had nothing to do with the actual seizure of cash.

In another case, the IRS emptied a convenience store owner’s bank account because it suspected he was depositing cash in such a way as to avoid reporting requirements for large deposits. He eventually won his money back after a lengthy court fight.

It is a sad commentary, but civil forfeiture may have a financial incentive. Once property is seized, owners must navigate a complicated set of hurdles to get it back. The more property is seized, the more income for that particular department or municipality. With the financial crisis, local governments are struggling as well. The explosion in civil forfeiture accounts likely coincides with a slowdown in other types of revenue due to the economic slowdown.

According to a recent survey, one in four female victims of domestic violence would not contact the police regarding their problem. The survey represents answers from 637 women who have experienced abuse by a partner. The average age of participants was 30 years old, and 56% were white.  Hispanics comprised 15% of the survey respondents, and African Americans represented 11%.

More than half of the respondents–including those who did not oppose calling authorities for help—agreed with a survey statement that reaching out to law enforcement “would make things worse.”  Two thirds said they were afraid the police would not believe them, or do nothing. A full 50% of the women said they were not sure if they would call the police in the future, and one third of respondents said they felt less safe after contacting the police.

Perhaps the most troubling is that 43 percent of women said they believed police discriminated against them due to their gender, socio-economic status and race/ethnicity, among other factors.

Domestic violence is one of the most prevalent problems in our society, and far too many victims are afraid to report it or force a change. On the law enforcement side, more training is required to make the process more transparent and make victims feel more secure after reporting. Victims need to be empowered, given a voice and treated with respect.

On the flip side, those accused of domestic violence are facing stiff penalties and serious consequences. It has serious implications for employment, ability to see one’s family and children, and eventually one’s freedom.

Recently, there have been several articles about James Jacobs’ The Eternal Criminal Record. The book shows how the current record-keeping system in the U.S. “presents a public-policy conundrum for American criminal justice: The more information we collect and share about suspected criminals and actual offenders, the easier it is to identify and discriminate against those marked individuals,” says Kevin Lapp, an associate professor of law at Loyola Law School in Los Angeles—thereby increasing the risks of recidivism. In his forthcoming article, Lapp argues that criminal record-keeping in the United States is “exceptionally public, exceptionally punitive, and exceptionally permanent.”

The issue presents difficult issues – by improving the information contained in criminal records, we can limit inaccuracies. However, since records are, for the most part, public, those with records have a hard time ever shedding their pasts and moving on. Possible solutions include limiting access to records, adopting legal employment discrimination protection against those with criminal records, or preventing employers from accessing arrest records. With the rash of police overreaching and arrests that result in dropped charges, we must focus attention on this problem, or more people will have lifelong employment problems.

There are a growing number of convictions overturned across the country – another just last month in Massachusetts — because prosecutors failed to disclose evidence of police misconduct that could have helped prove the defendant’s innocence. A convicted murderer in New Hampshire is seeking a new trial on similar grounds.

Called Brady material because of the 1963 U.S. Supreme Court case Brady v. Maryland, prosecutors are constitutionally required to turn over all favorable, material evidence to the defense. That includes evidence of police dishonesty such as lying in an official proceeding, falsifying evidence or stealing when an officer is going to testify, but can also include excessive use of force. The defense could then use the information to impeach an officer’s testimony.

“The only evidence linking [an Arizona mother formerly convicted of conspiring to kill her son, now released] to the murder of her son is the word of Detective Armando Saldate, Jr. – a police officer with a long history of misconduct that includes lying under oath as well as accepting sexual favors in exchange for leniency and lying about it,” Ninth Circuit Court of Appeals Judge Kozinski wrote in the opinion.

The Arizona case is a recent example of a nationwide trend where courts have learned long after the fact that prosecutors have failed to disclose Brady material. Most frequently, this leads courts to overturn convictions, and in some cases dismiss the charges entirely. Judge Kozinski noted in his opinion that it is often difficult to get prosecutors to comply with Brady requirements because they feel that it weakens their cases. Courts have made it clear, however, that they will not tolerate Brady disclosure violations.

The MacArthur Foundation recently announced that it would invest $75 million in pilot programs across the country aimed at curbing the nation’s problem of jail overcrowding and overuse. There are almost 12 million jail admissions each year, which cost taxpayers a significant amount and (many argue) encourage increased crime in the future. About three-fifths of the nation’s jail inmates are pretrial defendants who are presumed innocent, but cannot afford bail.

The cycle is vicious – pretrial defendants who cannot make bail are imprisoned until their case progresses. They lose their jobs, housing, and stop earning money for themselves and their families. When their case finally comes to a disposition, they have lost a significant amount, even if acquitted.

In a major step toward addressing the problem, the MacArthur Foundation announced that 20 locations around the country will receive $150,000 each to tackle the problem. The goal is for these locations  “to plan experiments aimed at demonstrating that many low-level offenders and defendants waiting for disposition of their cases don’t have to be behind bars—with no harmful impact on public safety.” The ten locations with the most promising plans will qualify next year for a second round of funding, between $500,000 and $2 million each year, to put their ideas into action.

The project got some key support from the Obama Administration in an appearance by Michael Botticelli, the director of national drug control policy. The drug czar declared that the nation’s jails “are being used to detain the wrong individuals” and called for a “public health” approach to drug problems rather than  “punitive” criminal justice approach.

The plan also got a boost from Nicholas Turner, president of the New York City-based Vera Institute of Justice, which has advocated for jail reform since its founding in 1961. Turner alluded to the idea of “justice reinvestment,” which is being tried in many states, essentially reducing the inmate population and using the money saved on housing them for social programs to prevent repeat criminality.

Only time will tell, but the grants are a step in the right direction. The problems exist across the country, including right here in Burlington County, NJ.

 

New Jersey Supreme Court Certified Attorney

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