New Jersey Criminal Lawyer Blog

May 12, 2019

The Five Year Time Bar on Post-Conviction Relief

New Jersey Court Rule 3:22-1 provides that any person convicted of a crime may file a petition for post-conviction relief within five years. If one files beyond that time frame, the rules allow for a relaxation of that five year time bar if the petitioner can demonstrate “excusable neglect” under N.J.R. 3:22-12. In considering the relaxation of the five year time limit, Rule 3:22-12(a)recognizes:

The difficulties associated with a fair and accurate reassessment of the critical events, years after their occurrence.
The need for achieving finality of judgments to allay the uncertainty associated with the unlimited possibility of re-litigation, thus strongly encouraging those believing that they have grounds for post-conviction relief to bring their claims swiftly, and discourages them from sitting on their rights until it is too late for a Court to render Justice.

State v. Mitchell 126 N.J. 565, 575 (1992)

April 30, 2019

Post-Conviction Relief: Getting Around the Five Year Time Bar

by Michael Pastacaldi

Post-conviction relief in New Jersey is often fraught with many difficulties, making it one of the most challenging areas of the law to practice in. One of its most challenging aspects is the five year time bar under New Jersey Court Rule 3:22-1. The relaxing of that time bar, which is under the legal concept of “excusable neglect” pursuant to N.J.C.R. 3:22-12(a), is one of the most hotly contested aspects of post-conviction relief petitions.

Having handled hundreds of post-conviction relief petitions over the years, I have seen a varied treatment of the time bar among the judges. Some judges give little leeway to litigants filing for post-conviction after the five year time bar whereas others are more sympathetic to relaxing the restrictions, particularly if the post-conviction relief concerns immigration issues. One thing is clear: the five year time bar is something to be concerned about when filing for post-conviction relief.

March 6, 2016

Kansas High Court deems DUI Refusal Law Unconstitutional

by Michael Pastacaldi

In a 6-1 ruling, the Kansas Supreme Court ruled that criminalizing the refusal of the blood-alcohol test during a traffic stop is unconstitutional. The court found that it violates the 4^th Amendment to the United States Constitution prohibiting unreasonable search and seizures by the police during these traffic stops. The Court found that a person has a constitutional right to refuse such searches and not be held criminally liable for refusing the breathalyzer test. This decision could reverberate and cause sweeping reform to DUI laws across the country.

February 28, 2016

Apple versus the FBI: Privacy versus Security

by Michael Pastacaldi

Benjamin Franklin wrote, “Those who give up their liberty for more security neither deserve liberty nor security.” That statement strikes at the heart of the recent dispute between Apple and the FBI over iphone access in a criminal investigation. In that dispute, the FBI wants Apple’s help to hack into an iphone used by one of the San Bernardino shooters. In the past, Apple has helped the FBI in criminal investigations in bypassing a built-in security system on one of its phones. This time, the phone used a later model, and it does not contain the built-in security system; therefore, the FBI is mandating that Apple help it hack into one of its own phones. Apple has refused citing numerous privacy concerns and the dangerous precedent this sets. The stage has been set for an epic legal battle between the titans of the tech age and the FBI.

February 21, 2016

Hacking: The New Frontier of Criminal Activity

by Michael Pastacaldi

This month Hollywood Presbyterian Hospital disclosed that hackers infiltrated its computer system, and they infected them with malware making the computer system inaccessible. The hackers originally demanded 3.4 million to remove the malware to give control back to the hospital. Although not paying the initial demand, The hospital did take the extraordinary step of capitulating and paying a $17,000 ransom to the hackers. In true cyber fashion, the ransom was paid in Bitcoins, a cyber currency.

January 23, 2016

Amnesty for Cooperation: The U-Visa Program

by Michael Pastacaldi

Recently, congress passed a law creating the “U-Visa” program which provides legal status to illegal immigrants who are victims of crimes such as sexual assault or domestic violence and other serious crimes. The purpose is to provide police with an added tool to protect victims and encourage witnesses who are residing here illegally to cooperate the police. Given the rise of illegal immigrants to the United States, the U-Visa program is great program to help those least likely to help themselves due to their legal status.

January 2, 2016

The “Affluenza defense”: A Criminal Defense Attorney’s Hail Mary

by Michael Pastacaldi

As criminal defense lawyers, we’ve all been there. A client with little to no defense while facing serious charges. You reach back into the file, re-read the entire record, and hope something will jump out at you in hopes of something to help your client. I am sure a similar scenario played out for the criminal defense lawyer representing Ethan Couch in Texas several years ago. On June 15, 2013, Couch, 16 years old at the time, was partying and drinking with his teenage friends in Burleston, Texas. He and his friends then decided to leave the house, and Couch opted to drive them in his parents’ pick-up truck to another location across town. Couch was intoxicated and, with about 6 of his friends in the pick-up truck, began speeding on a narrow two lane road. He weaved off the road, and stuck several park cars and plowed into four pedestrians on the sidewalk. All four of the pedestrians were killed and many others seriously injured.

December 20, 2015

DUI and The Right of Refusal: The US Supreme Court to Decide

by Michael Pastacaldi

The United States Supreme decided this past week to hear cases stemming out of North Dakota and Minnesota concerning the constitutionality of criminalizing the refusal of breathalyzer tests. The legal issue in question concerns law enforcement’s potential infringement of the Fourth Amendment right to unreasonable search and seizure under the United States Constitution when police criminalize a suspect for refusing the breath test during a DUI stop. The Supreme Court has ruled in general that the police cannot search a driver or vehicle upon arrest without a warrant unless it is for their own personal safety or to preserve evidence. Challengers to this law look to the Supreme Court’s 2013 decision holding that police could not conduct blood tests without a warrant.

December 12, 2015

Gun Control: The Stark Reality for NY and NJ Residents

by Michael Pastacaldi

On December 9, 2015, Tatiana Duva-Rodriguez, who is licensed to carry a concealed weapon, discharged her sidearm at a shoplifters’ getaway car at a Home Depot parking lot in Detroit, Michigan. She saw a store security guard chasing a suspect who was pushing a cart filled with merchandise who then entered a getaway car and began to speed off. Duva-Rodriguez then fired her weapon at the car’s wheel thereby impeding the suspects escape. Duva-Rodriguez later pled no-contest to reckless discharge of firearm and received a probationary sentence mandating that her license to carry to a concealed weapon be revoked.

October 18, 2015

Social Media and Your Criminal Case

by Michael Pastacaldi

Recently, a Floridian woman was live streaming herself driving intoxicated. She says at one point “I’m so drunk” and “let me see if I can make it home without a ticket” on the live stream Periscope App on which other individuals can comment. While on this application, an officer logged on to it and located her car. She then failed the field sobriety test. She was ultimately arrested and given $500 bail.

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