Posted On: September 22, 2010

New Jersey Court Throws Out State’s Fraud Suit Against Springsteen Ticket Sellers

The New Jersey Superior Court recently threw out a lawsuit filed by the State against ticket resellers Orbitz Worldwide and TicketNetwork Direct. The suit arose from the sale of tickets to Bruce Springsteen shows at Giants Stadium last year, six days before Ticketmaster began selling tickets. The state alleged that the resellers had violated New Jersey’s Consumer Fraud Act by offering tickets, some of which they did not actually possess or which did not correspond to actual seats, before they were made available to the public. Both Orbitz and TicketNetwork Direct operate as an internet market-places for independent ticket sellers; neither possessed actual tickets for sale. The Superior Court held that these providers do not have liability for a ticket seller’s mistake in the description of an item being sold.

Those accused of crimes, or administratively punished by “state” officials, are subject to the protections of the Constitution of the United States. An experienced criminal defense attorney ensures a defendant’s rights are protected. If you have been charged with, or convicted of an offense, you have constitutionally protected rights which the Law Offices of Marc Neff will protect. For a confidential consultation, please contact our office at 215-563-9800 or via email at marc@nefflawoffices.com.

Posted On: September 21, 2010

Sentencing in Drug Case Vacated

The Superior Court of Pennsylvania recently vacated a defendant’s conviction for drug charges upon a finding that the evidence was obtained as a result of an unlawful search and seizure. In 2008, the defendant was arrested and charged with possession and possession with intent to distribute a controlled substance after he was found carrying large quantities of marijuana and crack cocaine. An on-duty officer had noticed the defendant on a street corner with three separate individuals over the course of an hour, each time entering a near-by grocery store when he noticed that the patrol car. Although the defendant had entered the store on three separate occasions, he never appeared to make any purchases.

After making these observations, the officer pulled alongside the defendant and requested his identification, exiting the patrol car. The officer then went back inside his car to run the defendant’s license, making conversation with him during this time. After discovering that the defendant had an outstanding warrant, the officer placed him under arrest. The officer then performed a routine search of the defendant and found thirty-six bags of crack cocaine, eleven bags of marijuana, and $1235.00. In 2009, the defendant was convicted in Berks County of two counts each of possession of a controlled substance and possession with intent to distribute a controlled substance.

Upon review, the Superior Court held that the officer’s conduct in taking and maintaining possession of the defendant’s license while he ran a background check constituted an investigative detention, because no reasonable person in the defendant’s possession would have felt free to terminate the encounter with the officer and depart the scene. As such, the detention must have been based on the officer’s reasonable and articulable suspicion that the defendant was involved in criminal activity, which the Court further found that the officer lacked. The Court noted that the officers observations had been nothing more than the defendant meeting with three men and walking into and out of a grocery store, all of which were lawful activities.

Those accused of crimes are subject to the protections of the Constitution of the United States. An experienced criminal defense attorney ensures a defendant’s rights are protected. If you have been charged with, or convicted of an offense, you still have constitutionally protected rights which the Law Offices of Marc Neff will protect. For a confidential consultation, please contact our office at 215-563-9800 or via email at marc@nefflawoffices.com.

Posted On: September 16, 2010

Counsel can be Deemed Ineffective for Failing to Advise a Defendant of Collateral Consequences

The Superior Court of Pennsylvania recently considered whether a defendant’s counsel was ineffective for failing to inform him that a guilty plea to indecent assault would result of the loss of his vested pension rights under the Public Employee Pension Forfeiture Act (PEPFA). Defendant Joseph Abraham, a high school teacher, had offered $300 to a student in exchange for sex, and also touched her buttocks. Abraham gave the student a business card with his private cell phone number written on it. Several months later, the student disclosed the incident to school police. Abraham, 67 years old at the time, was allowed to retire with pension. In December of 2008, Abraham pled guilty to one count of corruption of minors and one count of indecent assault in the Court of Common Pleas of Allegheny County. Pursuant to PEPFA, by pleading guilty to indecent assault, Abraham forfeited his rights to his pension upon conviction.

On appeal, Abraham argued that his counsel at trial had been ineffective for failing to have informed him that he would lose his pension upon conviction prior to entering his guilty plea. In order for a plea bargain to be valid, a defendant’s plea must be knowing and voluntary. Under the Sixth Amendment to the US Constitution, all criminal defendants are guaranteed a right to assistance of counsel in making all decisions related to critical stages of the criminal process. In Strickland v. Washington, 466 U.S. 668, 686 (1984), the US Supreme Court held that counsel must be competent, and that the attorney’s actions must be effective. In reviewing Abraham’s claim of ineffective assistance, the Superior applied the test set forth in Strickland, considering whether Abraham’s attorney’s so undermined the adversarial process that the trial could not be relied on as having produced a fair result in his case.

The Court found that Abraham’s attorney’s failure to inform him that he would forfeit his pension rights upon pleading guilty to indecent assault rendered his assistance ineffective. It reasoned that because forfeiture of benefits is punitive in nature, it is intimately connected to the criminal process, and thus is knowledge that must have been communicated to Abraham by his attorney. The Court remanded the matter to hearing to determine what prejudice Abraham suffered.

Those accused of crimes, or administratively punished by “state” officials, are subject to the protections of the Constitution of the United States. An experienced criminal defense attorney ensures that a defendant’s rights are protected. If you have been charged with, or convicted of an offense, you still have constitutionally protected rights which the Law Offices of Marc Neff will protect. For a confidential consultation, please contact our office at 215-563-9800 or via email at marc@nefflawoffices.com.


Posted On: September 15, 2010

Prosecutorial Misconduct Causes Reversal in Drug Case

The Third Circuit Court of Appeals recently vacated a defendant’s conviction on the grounds that the prosecutor’s introduction of testimony, that he had promised not to rely on at trial, had deprived the defendant of a fair trial. In US v. Liburd, Liburd was convicted of attempted importation of cocaine and possession with intent to distribute more than 500 grams of cocaine.

On Oct. 4, 2008, Liburd attempted to board a flight to Atlanta from the St. Thomas airport. As he passed through TSA security, one of the officers noticed an image of two large masses in his carry-on bag. He was referred to an inspection station, where another TSA officer searched his bag and asked about the two brick-like masses, which Liburd identified as “cheese.” He was subsequently permitted to continue to his flight, where, as he waited to board, another officer approached him for a “random inspection” because he appeared to be nervous. Upon a second search of his carry-on bag, Liburd made a statement that “there’s something in my bag.” The search revealed that the two brick-like objects were in fact over 2 kilograms of cocaine. Liburd was subsequently charged with possession with intent to distribute more than 500 grams of cocaine and attempted importation.

Liburd moved to suppress the statement “there’s something in my bag” and the cocaine. Defense counsel did not move to suppress Liburd’s statement that the cocaine was “cheese” during the first search of the bag because, at that time, the statement had not been disclosed. At the suppression hearing, the prosecutor stated that he would not rely on any statements made by Liburd at trial. As a result, the court declined to rule on the admissibility of the statements.

Right before the trial, the prosecutor disclosed Liburd’s “cheese” statement. At trial, he repeatedly referred to Liburd’s cheese statements. The court declined defense counsel’s objection and request for a mistrial, instead giving jurors an instruction not to consider statements attributed to Mr. Liburd that were improperly introduced. Liburd was convicted on both charges, and subsequently appealed.

On appeal, Liburd argued that the prosecutor’s use of his cheese statement was misconduct that violated his right to due process. The Court of Appeals agreed, explaining that once a prosecutor makes a promise to defense counsel, or the court, they are committed to keeping it, and that the prosecutor’s actions made a fair trial impossible in this case, therefore violating Liburd’s due process rights under the Fifth Amendment. The Court specifically noted that the prosecutor’s promise not to use any of Liburd’s statements affected his trial strategy, because but for this promise, the strategy would have been different. The Court vacated Liburd’s conviction and remanded the case for further proceedings.

All persons charged with crimes are entitled to the protections afforded by the United States Constitution. An experienced criminal defense attorney helps to ensure that a defendant’s rights are protected before, during and after a trial. If you have been charged with or convicted of a criminal offense, you should consult with a criminal defense attorney immediately. For a confidential consultation, contact the Law Offices of Marc Neff at (215) 563-9800 or via email at marc@nefflawoffices.com.

Posted On: September 13, 2010

Drunk Driving Conviction Upheld

The Superior Court of Pennsylvania recently affirmed both the DUI conviction and the judgment of sentencing of Robert Toland, II, stemming from his 2006 arrest in Delaware County. Toland had been spotted by an on-duty patrolman late at night passed out behind the wheel of his car, which was parked on the street outside of a store. The headlights were on and the motor was running, and a cold, unopened six-pack of beer was found inside of the car. Toland subsequently consented to a blood-test, where his blood alcohol concentration (BAC) was found to be .3%. The legal limit in Pennsylvania is .08%

Toland was arrested and charged with DUI- highest rate of alcohol pursuant to PA §3802(c), which prohibits an individual from driving, operating, or being in actual physical control of the movement of a vehicle after drinking enough to render a BAC of .16% or greater within two hours after they have been in physical control of the movement of the vehicle. Two weeks later, Toland was arrested for public drunkenness and hospitalized, after which he voluntarily checked himself in to a year of residential inpatient rehabilitation.

At trial in 2008, Toland was found guilty. As this was his third DUI offense within the past 10 years, he was sentenced to the mandatory minimum of 12 to 24 months imprisonment. Upon appeal, Toland argued (1) that the Commonwealth had failed to prove that he had been in actual physical control of the movement of the car at trial, and (2) that he should have been awarded credit towards his sentence for the time he served in treatment, as it was ordered as a condition of bail.

The Superior Court rejected both of Toland’s arguments. In challenging the Commonwealth’s support for showing that he was in actual physical control of the movement of his vehicle, Toland relied heavily on the Superior Court’s decision in Commonwealth v. Byers. In Byers, the defendant was discovered sleeping in the driver’s seat of a parked car outside of a bar, with the headlights on and the engine running. The Superior Court emphasized that the purpose of drunk driving laws is to protect the public at large, and that the evidence suggested that Byers was merely “sleeping it off” and thus did not pose a threat to public safety by operating the car while intoxicated on a public roadway. Here, the Superior Court distinguished the case from Byers, noting that Toland was not parked outside of a bar, but outside of a store that did not sell alcohol, with a cold six-pack of beer in his car. Upon these facts, the Court found that there was sufficient evidence to support the inference that Toland drove the vehicle to that location and intended to drive the vehicle home or to some other location so as to support the trial court’s DUI conviction.

Toland also argued that he should be awarded credit towards his sentence for his time spent in in-patient alcohol rehabilitation. Under 42 Pa. C.S. §9760, a defendant is granted credit for time spent in custody prior to sentencing for a particular offense. Whether a defendant is entitled to credit for the time spent in inpatient drug or alcohol rehabilitation turns on the question of voluntariness. If a defendant is ordered into inpatient rehabilitation by the court, he is entitled to credit for that time against his sentence; however, if a defendant chooses to voluntarily commit himself to inpatient rehab, it is up to the court to decide whether to approve credit for this commitment.

Here, the Superior Court found that Toland’s voluntary commitment to the inpatient facilities left it up to the trial court to determine whether to approve credit for time served. The Court emphasized that Toland did not check himself into treatment until one month after his release on bail, and after he had been re-arrested for drunkenness and hospitalized. Further, the Court noted a 2008 affidavit, where the defendant stated that he had not gone to rehab to avoid going to jail, but did so voluntarily to save his life. Thus, it was not improper for the trial court to deny Toland credit for his time spent in treatment.

Those accused of crimes, or administratively punished by “state” officials, are subject to the protections of the Constitution of the United States. An experienced criminal defense attorney ensures a defendant’s rights are protected. If you have been charged with, or convicted of an offense, you still have constitutionally protected rights which the Law Offices of Marc Neff can protect. For a confidential consultation, please contact our office at 215-563-9800 or via email at marc@nefflawoffices.com.