Posted On: September 29, 2008

New Jersey Supreme Court to Decide whether Search Warrants are Necessary in Traffic Stops

New Jersey’s standard for conducting a police search following a traffic stop has long been stricter than the Federal standard. In New Jersey, state law not only requires police to show probable cause to conduct a search, but also that there is a safety risk to them or the public; otherwise, police are required to obtain a search warrant prior to conducting a search of the stopped vehicle. The Federal standard, as adopted by most states, only requires a showing of probable cause. At issue are two cases, currently being heard by the New Jersey Supreme Court. In both cases, vehicles were stopped for traffic violations and upon a finding of probable cause, the vehicles were searched and drugs and weapons were recovered. In both cases, State Appellate Courts found the searches to be improper because the police did not obtain a search warrant.

Advocates for keeping New Jersey law as is argue that the United States Constitution contains protections against illegal searches and seizures, and that even if obtaining a warrant is an extreme burden, it is a burden the Constitution envisioned. The opposition argues that New Jersey state law is too restrictive on police and that it should be changed to match the Federal standard. The current law requires judges to be on-call 24/7 to issue search warrants for traffic stops. Further, they argue that a quick 5-minute search based on probable cause is less intrusive than detaining the driver and passengers while a warrant is being obtained. Other questions to be determined relate to “warrant substitutes”, such as when an officer sees contraband in plain-view during the traffic stop. In this instance, obtaining a search warrant can be seen as an unnecessary obligation since it will undoubtedly be issued. Advocates for keeping the existing law argue that judges should be more readily available to issue warrants; not merely dispensing with the requirement to obtain warrants.

Suppression of Evidence

In a criminal trial, the burden is on the prosecution to prove guilt beyond all reasonable doubt. The prosecution builds their case with evidence; some evidence stronger than other. There are rules regarding evidence, both State and Federal, which govern what evidence is admissible and what is not. Often, some or all of the evidence the prosecution wishes to use was obtained illegally, either by police or third party. An experienced criminal defense attorney is an expert in the field of evidence. Upon reviewing a defendant’s case, a criminal defense attorney will determine if some of the evidence can and should be suppressed, and will take the appropriate actions to do so.

If you have been charged with a criminal offense, contact the Law Offices of Marc Neff via phone at (215) 563-9800 or e-mail Marc@nefflawoffices.com for a confidential consultation.

Posted On: September 26, 2008

Pennsylvania Superior Court Holds that Acceptance into ARD Program Constitutes a Conviction for Sentencing Purposes on Subsequent Offenses

The Pennsylvania Superior Court recently upheld a conviction for a second Driving under the Influence offense, appealed by a minor who argued that his acceptance into an Accelerated Rehabilitative Disposition (ARD) program did not constitute a prior conviction. William Joseph Love, a minor, was charged with DUI, DUI as a minor, and careless driving in February of 2006. In June of 2006, the Commonwealth accepted Love into the ARD program; a one-time program similar to probation where if the offender satisfies all of the criteria set forth, criminal charges will be expunged from their record. Then, in September of 2006, Love was arrested again on charges of DUI and related offenses, including driving on a DUI-related suspended license. His ARD was subsequently revoked, causing him to have to stand trial for the February 2006 offense. Love was convicted of the September 2006 offenses in September of 2007, and then pled guilty to the earlier offenses in November of 2007. Later in November of 2007, Love was sentenced for his conviction on the second offense.

The trial court determined that Love’s acceptance into the ARD program for his first offense constituted a “previous conviction” within the past 10-years, allowing the recidivist enhancement of Pennsylvania’s DUI statute to take effect; the enhancement allows for increased penalties for repeat offenders. Love argued that his acceptance into the ARD program did not constitute a previous conviction, and further that he had not been convicted or sentenced for his first offense prior to being convicted of his second. The Pennsylvania Superior Court looked to both State statue and case-law precedent to determine that acceptance into ARD and other preliminary dispositions in fact constitute the equivalent of a conviction for sentencing purposes. Therefore, it did not matter that Love had yet to be convicted or sentenced for his first offense before being convicted of his second; his acceptance into ARD for the first offense constituted a conviction for the purpose of sentencing on his subsequent violations.

Drunk Driving

Driving under the influence in Pennsylvania is a serious matter, as it is in every state, and carries minimum penalties required by Pennsylvania statute. The mandatory minimum is based on elements of the conviction, with increases in the mandatory minimum based on any previous conviction for DUI or comparable offense within the past ten years. Penalties can range from 6-months probation to up to one year in prison; along with other fines and penalties.

If you have been arrested for Drunk Driving, DUI, DWI, or Underage Drinking, contact a Philadelphia Criminal Defense Attorney immediately. There may be defenses available to you, which can reduce or eliminate penalties associated with these charges.

Posted On: September 25, 2008

Pennsylvania Mayors Pledge to Enact Strict Gun Laws

Philadelphia Mayor Michael Nutter enacted controversial gun laws in the city, earlier this year, three of which were upheld as constitutional by Common Pleas Court Judge Jane Cutler-Greenspan. The laws, which are stricter than Pennsylvania State gun laws, require gun owners to report lost or stolen guns within 24-hours of discovering their disappearance, impose criminal penalties for failing to do so, and also restrict unstable individuals and individuals subject to an order of protection from owning guns. Following Philadelphia’s lead, a coalition of regional mayors which includes Mayor Nutter and the Mayors of Allentown, Bethlehem, Easton, Lancaster, Reading, Pottsville, and York pledged to introduce legislation which would impose possible fines and/or jail time for failing to report a lost or stolen firearm.

The announcement, which took place this week during a news conference held at Philadelphia’s City Hall, was hoped to put pressure on the state legislature to enact statewide gun laws. All of the Mayors agreed to propose legislation within the next few weeks for their respective cities, and all also said that they are prepared to be sued; just as in Philadelphia where proposed legislation was challenged by the National Rifle Association before being upheld in part. Under the Philadelphia legislation which was upheld, failure to report lost or stolen firearms can result in a fine of up to $1,900 and 90 days in jail. Several attempts to pass statewide legislation for gun control have failed recently, however, a bill increasing penalties for “straw” purchases, or legal purchases of firearms which are then delivered illegally to felons, passed the House in April of this year. Mayor Nutter hopes to expand the coalition of Mayors to include other Pennsylvania cities such as Erie, Pittsburgh, and Williamsport.

With gun laws ever changing both locally and nationally, it is extremely important to seek the expertise of an experienced criminal defense attorney when charged with a gun-related offense. An experienced criminal defense attorney has the skill to interpret the changing laws and develop the best available defense to your charges. If you have been charged with a gun-related offense, contact the Law Offices of Marc Neff immediately.

Posted On: September 23, 2008

U.S. Court of Appeals takes Broad View in NY RICO Case, Reinstates Convictions of Two Defendants

Louis J. Eppolito and Stephen Caracappa are former New York City Police Detectives who in 2006, were both convicted on Federal Racketeering charges. The former detectives were convicted of working closely with some of New York’s organized crime families, partaking in conspiracy, kidnapping, bribery, obstruction of justice, leaking police information, and the killing or assisted killings of at least eight people. The Detective’s work with the New York Mafia took place mostly in Brooklyn, and occurred during the 1980’s and 1990’s. The duo was arrested in 2005 in Las Vegas on charges of money laundering and narcotics distribution. The prosecutor used these charges to bring the Detective’s prior criminal activity under the umbrella of an ongoing criminal enterprise, so that they could be prosecuted under the Federal RICO statute. Eppolito and Caracappa were convicted by a jury and sentenced to life imprisonment by the trial judge; however, despite overwhelming evidence of guilt, the trial judge set aside their sentence because he determined that the RICO statute’s 5-year statute of limitations had run. He ruled that the criminal activity which occurred in Las Vegas was unrelated to the Detective’s work with the New York mob, and therefore they could not be tried for their activity during that time.

Setting aside the conviction opened an exception to the double jeopardy rule, allowing the prosecution to appeal the trial court decision. In an appeal to the United States Court of Appeals for the Second Circuit, the Court found that the Detective’s actions were intertwined in that all of the activity was for the same purpose; making money. Eppolito and Caracappa were compensated for their work with the New York Mafia. They continued to commit criminal acts in Las Vegas for the same purpose. Taking a broad approach, the Court disagreed with the trial court’s assertion that the Las Vegas acts were “singular, sporadic acts of criminality” and ruled that the acts were part of a criminal enterprise which in fact did not end before 2000. Due to this finding, the statute of limitations for the RICO statute was found not to have tolled, and the Court reinstated the convictions and life sentences for Eppolito and Caracappa.

RICO

The Racketeer Influenced and Corrupt Organizations Act is a federal law that provides for extended penalties for criminal acts performed as part of an ongoing criminal organization. Under RICO, a person or group who commits any two of 35 crimes within a 10-year period, and has committed those crimes with similar purpose or results, can be charged with racketeering. Those found guilty of racketeering can be fined up to $25,000 and/or sentenced to 20 years in prison for each count they have been charged. In addition, the offender must forfeit all profits and interest in any business gained through a pattern of "racketeering activity."

RICO charges are extremely serious and carry severe penalties if convicted. Generally, charges stem from long federal investigations. If you are the subject of a RICO investigation or have been charged, it is absolutely imperative that you contact a criminal defense attorney with experience in these areas. The Law Offices of Marc Neff has successfully defended people against such charges for over 20 years. If you feel you are under investigation, or have been indicted/charged, contact our offices immediately so that we may assist in your defense.

Posted On: September 17, 2008

New Jersey Governor Amends State’s Comprehensive Drug Reform Act to Allow Discretion for Suspension of Driving Privileges

New Jersey’s Comprehensive Drug Reform Act of 1987 stated in part that based on criminal history, the extent of the offense, and other criteria, a person could be sentenced to a term of probation if found guilty or if he/she plead guilty to a drug offense. Under the original legislation, such a sentence would have required the judge to suspend the defendant’s driving privileges for a period of 6-months to 2-years. As a result of changes in drug laws last year, the New Jersey legislature authorized judges to forego the suspension of a driver’s license if the defendant could demonstrate an extreme and compelling hardship due to the loss of such privileges. The amendments signed into law yesterday will now allow judges to forego suspension of driving privileges in the cases of extreme hardship and will also allow a judge to reinstate a convicted person’s driving privileges if they are currently in a suspended status and can show evidence of hardship.

The amendments state in part that a suspension of driving privileges may be foregone when the suspension will result in extreme hardship and alternate means of transportation are not available. Extreme hardship was defined by the New Jersey Superior Court in a 2007 appellate case; State v. Bendix. In Bendix, the defendant was convicted of two disorderly persons offenses relating to possession of cocaine and paraphernalia. The defendant was a state certified mechanic and argued that the loss of his license would not only affect his getting to work, but also his ability to road test vehicles he worked on, drive customers to and from his garage, and also that New Jersey law required a state inspector to be a licensed driver. Further, the defendant claimed that two employees he had hired in anticipation of losing his license had become disabled and had to quit respectively. The trial court expressed great concern in considering the defendant’s situation a hardship, noting that if granted a hardship, the court would have to grant many others a hardship based on their difficulty in getting to work. On appeal, the Superior Court took into consideration the defendant’s job as a mechanic as his means of earning a livelihood and therefore, granted the hardship.

Drug offenses are serious matters which involve serious penalties, in Pennsylvania, New Jersey, and throughout the United States. If you have been charged with a drug offense, there are many defenses which may be available. Contact the Law Offices of Marc Neff immediately so that we may assist you in your situation.

Posted On: September 15, 2008

Pennsylvania Superior Court Upholds Conviction where Evidence of Trafficking Outweighs Expert Testimony of Personal Use

Philadelphia police officers arrested a man suspected of trafficking drugs, after observing him twice engage in hand-to-hand transactions with individuals who approached the suspect. The suspected dealer, Lawrence Lee, was observed accepting money from individuals, walking across the street to a vacant lot, and then returning with small objects in his hand which he would give to the buyer. Following the first sale observed by police, the buyer was stopped, searched, and a small, pink-tinted bag containing crack-cocaine was recovered. After observing the second sale, police arrested Lee and recovered a small amount of cash. Upon searching the vacant lot where Lee was observed during the sales, 49 pink-tinted bags of crack-cocaine were recovered.

The Pennsylvania Supreme Court previously has held that police experience and training are insufficient factors to establish probable cause, when police observe a single hand-to-hand transaction which they believe to involve drugs. However here, police observed multiple transactions and also had recovered crack-cocaine from the first alleged customer. Lee appealed his convictions, one count each of possession of a controlled substance and intent to deliver a controlled substance, on the basis that the prosecution did not establish all of the elements of the intent to deliver. In Pennsylvania, the intent to deliver can be implied by having a large quantity of a controlled substance. Pennsylvania law requires mandatory minimum prison sentences for conviction of trafficking, based on the quantity of contraband recovered. Police recovered 2.6 grams of crack-cocaine from Lee; enough to constitute a mandatory minimum sentence for his trafficking conviction. Lee brought an expert witness to testify on his behalf that some of the drugs recovered were for Lee’s personal use and not intended to be sold. The defense had hoped that this would, at the least, bring the amount of drugs “intended to be sold” under the 2.0 gram threshold for the mandatory minimum sentence. However, the Superior Court found that since there was no paraphernalia recovered, among other factors, they were free as the fact-finder to find the expert testimony incredible, and therefore upheld Lee’s conviction on both counts.

Drug Possession

Possession of a controlled substance is a crime which carries many harsh penalties. Depending on the quantity of controlled substance you are found to possess, you may even be charged with intent to deliver or drug trafficking. Such charges carry even greater penalties. For example, possessing between 2 and 10 grams of crack-cocaine with intent to traffic carries a minimum penalty of 1 year in prison for a first offense, and 3 years for subsequent offenses. Larger quantities mandate longer minimum sentences as well.

Drug offenses are serious matters which involve serious penalties. If you have been charged with a drug offense, there are many defenses which may be available. Contact a Philadelphia Criminal Defense Lawyer immediately, so that your situation can be assessed and a defense to your charges can be developed.

Posted On: September 11, 2008

Corruption Trial for Pennsylvania State Senator Begins This Week

Pennsylvania State Senator Vincent Fumo, a member of the Pennsylvania Senate since 1978, will stand trial starting this week on corruption charges. Fumo was indicted nearly a year and a half ago on 139-counts of corruption and related offenses, including but not limited to conspiring to defraud the Senate, conspiring to defraud a South Philadelphia non-profit organization, conspiring to defraud Philadelphia’s Independence Seaport Museum, obstruction of justice, and tax violations. The U.S. Attorney’s office alleges that the fraudulent activities for which Fumo is accused totaled $3.5 million.

Fumo’s trial will begin by the selection of the jury; a pool of two hundred potential jurors has been summoned from Pennsylvania’s Eastern District, which includes Philadelphia, Bucks, Montgomery, Delaware, Chester, Lancaster, Lehigh, Northampton, and Berks. Narrowing the pool down to the final twelve jurors may very likely take an entire week. Once the jury has been selected, the actual trial will begin with the prosecution presenting its case. According to the 267-page indictment, the prosecution will attempt to prove that Fumo would use tax dollars for projects and items related to personal gain, as well as using Senate employees for the same. He is even accused of using Senate money to hire a private investigator to spy on his ex-wife and girlfriends. Fumo allegedly destroyed evidence in an FBI and IRS investigation relating to his operations at the Independence Seaport Museum as well.

In Fumo’s defense, a list of potential witnesses has been produced, which includes important city and state officials such as Governor Rendell, former Philadelphia Mayor Wilson Goode, two former State Supreme Court Justices, current Philadelphia judges, and Representatives Robert Brady and Chaka Fattah. If convicted, the U.S. Attorney is expected to seek a prison sentence of at least 10-years. For Fumo, who is 65-years of age, a conviction could potentially mean a life-sentence.

The Law Offices of Marc Neff have over 20-years of experience successfully defending clients charged with fraud and related offenses. If you are under investigation, or have been charged with a criminal offense, contact our offices immediately. There are defenses available to you, and the Law Offices of Marc Neff can assist in developing a successful defense.


Posted On: September 8, 2008

Pennsylvania Appellate Court Upholds Suppression of Evidence Obtained through Coercive Traffic Stop

The Superior Court of Pennsylvania recently upheld a Cumberland County trial court’s decision to suppress evidence obtained through a traffic stop. Terry Moyer was stopped when a Corporal from the Pennsylvania State Police noticed a hole in his rear taillight. The Corporal turned on a spotlight and observed frantic movement between the driver, Mr. Moyer, and his passenger. The Corporal approached the driver and proceeded to initiate the traffic stop. The Corporal returned to his vehicle with Mr. Moyer’s information and as he was examining the driver’s information, another State Police vehicle approached. Examination of Mr. Moyer’s record showed a prior conviction for marijuana possession. The Corporal asked Mr. Moyer to exit the vehicle, proceeded to show him the hole in his taillight, and issued him a warning card; at this time, both officers were standing at the rear of Mr. Moyer’s vehicle. The Corporal noticed that Mr. Moyer’s eyes were red but told him that he was free to leave.

Just prior to Mr. Moyer re-entering his vehicle, the officer requested of Mr. Moyer that he could ask him a few more questions. Mr. Moyer reluctantly complied, to which he was asked if he had any drugs or paraphernalia on his person or in the car. The Corporal then asked if he could search the vehicle to which Mr. Moyer reluctantly agreed. A crack-pipe was found in the vehicle and another on Mr. Moyer upon his search. A subsequent blood test of Mr. Moyer showed cocaine use.

The Defense argued that the State Police action constituted a detention, requiring a reasonable suspicion to initiate a search of the defendant’s vehicle. The Commonwealth argued that since Mr. Moyer was told he was free to go following the traffic stop, the events which followed constituted a mere encounter between police and civilian, not requiring reasonable suspicion. The United States Supreme Court has ruled previously that a totality of the circumstances approach must be taken in determining what type of encounter such situation constitutes. One part of this test is whether a reasonable person would believe they were free to leave or to reject an officer’s request for search. In the case of Mr. Moyer, both the trial court and the Pennsylvania Superior Court agreed that although Mr. Moyer was told he was free to go, the subsequent actions of the officer made him believe that he was not in fact allowed to leave. Further, he was not told he could refuse the officers’ request to initiate a search. For the foregoing reasons, the evidence against Mr. Moyer was properly suppressed.

Drug Offenses

Drug offenses and Driving under the Influence are serious matters in Pennsylvania; certain offenses such as trafficking are considered felonies and carry mandatory minimum sentences. The Fourth Amendment of the United States’ Constitution affords individual rights pertaining to police search and seizure. Very often, an Experienced Criminal Defense Attorney will have evidence found inadmissible due to an illegal police search, and will have charges against the defendant dropped or greatly reduced.

If you have been charged with a drug offense, contact the Law Offices of Marc Neff immediately. We are glad to assist you in your defense and help you get your life back.

Posted On: September 4, 2008

Prosecutors Given New Guidelines for Investigating White Collar Crime

On the same day that the United States Court of Appeals upheld the dismissal charges against 13 former KPMG executives due to a finding that their constitutional rights had been violated, the United States Justice Department announced new guidelines for the prosecution of white collar crime. In the KPMG case, federal prosecutors would not allow KPMG to pay the legal fees of its executives. This was just one of the many tactics used in the past by federal prosecutors to compel cooperation from corporations and its individuals. The department faced criticism from corporations, attorney groups, and legislatures over its practice of “cooperate or face indictment”. Often times, cooperation would involve compelling privileged information and testimony from corporate officers, attorneys, etc., and as seen in the KPMG case, restriction on the company from paying legal fees for its officers.

The new guidelines set forth that prosecutors may not undermine attorney-client privilege, consider whether the company is paying the legal fees of its employees, officers or directors being investigated for wrongdoing, and whether a company has made joint defense agreements with other firms or individuals. Prosecutors may also only consider whether a corporation has disciplined employees “that the corporation identifies as culpable, and only for the purpose of evaluating remedial measures or compliance program”, whereas before prosecutors could consider whether a corporation disciplined or fired employees for the purposes of evaluating cooperation. Some critics have called for permanent legislation rather than simply guidelines, including Pennsylvania Senator Arlen Specter, but agree that this is a step in the right direction. Corporate law groups also hope that similar guidelines are adopted by other government agencies, such as the Securities and Exchange Commission.

There are many types of white collar crime, ranging from RICO and Money Laundering to all types of Fraud. Attorney Marc Neff has over 20 years experience successfully representing corporate and business executives, professionals, public officials, and others charged with federal white collar crimes. For a confidential consultation, contact our office via phone at (215) 563-9800 or via e-mail at Marc@nefflawoffices.com.

Posted On: September 2, 2008

Former Philadelphia Area Camp Counselor Indicted on Charges of Child Pornography

A former Friends’ Central camp counselor was recently indicted on charges of distributing child pornography. The defendant was under FBI investigation for three months prior to being arrested earlier this month. The FBI used an undercover agent, posing as the mother of a thirteen year old girl, as part of their investigation. In the complaint, it is alleged that the defendant told the agent he had aspirations of becoming a teacher and that his being around little girls would be a “fringe benefit”.

The defendant allegedly told authorities that he began looking and naked pictures of underage girls a few years ago and would use chat rooms to meet people with similar interests. He would allegedly trade pictures with the people he met online as well. The complaint further alleges that when he was 18-years old, he touched a child as he was helping her change into her swimsuit; he described the touching as “a great feel”. Authorities claim to have found over 100 images of child pornography on the defendant’s computer; the girls ranging in age from five to thirteen.

He has been held without bail since his arrest earlier this month. If convicted on the most serious counts of child pornography, he faces a mandatory five years in prison and a potential maximum sentence of twenty years.

Child Pornography

Federal Law defines child pornography as “a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, photograph, film, video, or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where it a) depicts a minor engaging in sexually explicit conduct and is obscene, or b) depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, and such depiction lacks serious literary, artistic, political, or scientific value.” Possessing, Making, and Distributing child pornography is illegal in all 50 states, including Pennsylvania, and it is an offense which carries serious legal penalties.

If you have been arrested and charged with owning, making, or distributing child pornography, the Law Offices of Marc Neff can help. There are defenses which are available to you. Contact the Law Offices of Marc Neff immediately.