Author: DaveSchroth

Domestic Violence Act Expanded: Elder Abuse

 

Elder abuse is a critically important social issue nation wide in the United States. In order to expand protections for victims of elder abuse, a New Jersey judge recently ruled that the Prevention of Domestic Violence Act is may be used to obtain restraining orders against abusers.

Ocean City Superior Court Judge Lawrence Jones said in J.C. v. B.S., “Although elder abuse is not a category specified in the Domestic Violence Act, it is clear that public policy allows for victims of such abuse to use the act to their benefit.” Judge Jones ordered the man, identified only as B.S., “Who lived with his 73-year-old mother, J.C., to vacate the house because of history of alcohol-fueled verbal abuse. He will be allowed to return to retrieve his personal possessions, but only under police supervision.”

This new ruling expands the way lawyers (and the courts and public) can find ways to protect senior citizens who are victims of elder abuse. Judge Jones noted that elder abuse might be, “either physical or emotional in nature, and that in some cases emotional abuse may be just as harmful as physical abuse.” The victim in this case, J.C., is, “in poor health, having had two mini-strokes, two back operations and a hip replacement, Jones said, adding that she is frail and has difficulty walking. She was living with a friend and her son, who had no ownership interest in the house.”

While J.C., lived in the house she was, “subjected to on-going harassment on a near-daily basis from her son, who called her vulgar names and made derogatory remarks about her anatomy. He also, on occasion, would poke his mother with a finger and once almost pushed her over.” Eventually, J.C. called the police to her defense. In response, Jones found, “there was more than enough evidence that B.S. had subjected his mother to verbal and physical abuse, and entered a final restraining order based on violations of the Domestic Violence Act.”

This ruling provides yet another way to protect your family members if you fear they may be suffering abuse in their old age. Elder abuse is just one of many cases where having a knowledgeable attorney is critical to a successful, and beneficial, resolution. David P. Schroth can help you and your family find an answer to your legal problem—from personal injury to criminal law and beyond. Contact David P. Schroth today to start finding a legal solution that works for you.

 

http://www.njlawjournal.com/this-weeks-news/id=1202742802551/Judge-Expands-Domestic-Violence-Act-to-Cover-Elder-Abuse?mcode=1202617207189&curindex=39

 

 

Exorcising Parental Rights

 

A New Jersey appeals court recently upheld a trial court’s decision to terminate the parental rights of, “a mentally ill woman who tried to have her children exorcised, and of the father, for his inability to stay sober and out of jail.” The New Jersey Division of Child Protection and Permanency removed the children from their biological parents’ care back in 2011. The court also noted that adoption by their foster parents is in the best interest of the children.

The two-judge Appellate Division panel stated that, “the two children—a 7-year-old boy and a 6-year-old girl—are now in foster care and that it would be in their best interests to have the foster family adopt them.” Judges Allison Accurso and Amy O’Connor stated, “The record amply supports the [trial] judge’s findings that both parents refused and failed to complete the services offered to them and that termination of their parental rights will not do more harm than good.”

Following the appeals decision, both attorneys for both parents refused to comment. The children were two and three years old when they were initially placed in foster care, “after the mother took them to a church an asked a priest to perform an exorcism. According to the ruling, the children had not eaten in three days, and she reported hearing voices—a “good one” and a “bad one”—and having to resist the urge to give her children to the devil.”

During this ordeal, the father, “was in prison serving time for burglary and assault, and there were no other family members able to care for the children. Since that time, the ruling said, neither parent was able to resume custody.” In a period of three years, the mother was “hospitalized for psychiatric problems at least four times. She reported hearing voices, experienced homicidal and suicidal tendencies, and was diagnosed with paranoid schizophrenia.”

This case is fraught with troubling realities—many of which are all too true for many of our fellow New Jersey families. If you have legal concerns regarding a family matter, you want a lawyer you can trust to handle the case with discipline, dedication, and determination. David P. Schroth can help your family overcome major legal matters while helping your family stay happy, healthy, and safe together. Contact David P. Schroth today to get the professional legal assistance you need for your case.

 

http://www.njlawjournal.com/this-weeks-news/id=1202743030056/Parental-Rights-Terminated-for-Mother-Who-Sought-Exorcism?mcode=1202617207189&curindex=29

 

 

 

Leaving The Scene of an Accident: No Contact Necessary

Most of us know that leaving the scene of an accident is a great way to get into legal trouble. However, not everyone is aware that the New Jersey appeals court has ruled in a, “case of first impression.” In effect, “an automobile is not required to have actually struck a pedestrian for the driver to be convicted of leaving the scene of a fatal accident.”

In the ruling for State v. Sene, Appellate Division Judge Robert Gilson states, “If the driver has a reasonable belief that he or she was “involved” in an accident, then the driver is guilty of leaving the scene if he or she does not stay…A driver whose actions contribute to an accident, and who knew of the causal relationship, must not leave the scene of the accident.” Appellate Division judges Jose Fuentes and Ellen Koblitz agreed with Judge Gilson on the ruling.

In December 2011, an elderly woman named Bu Do Jo, died after being struck by a jitney on Pacific Avenue in Atlantic City, New Jersey. The defendant in State v. Sene, Jean Sene was behind the wheel of his cab, traveling in the same direction as the jitney. Jo stepped into the street, fell backwards, into the path of the Jitney, where she was pronounced dead. After the accident, the jitney driver stopped right away, but Sene parked around the corner. Camera footage from the accident shows that Sene returned to the scene of the accident, surveyed the incident but spoke to no one, and then left again. Security footage easily identified his cab.

The jury convicted Sene of, “leaving the scene of a fatal accident in violation of N.J.S.A. 2C:11-5.1. A trial judge sentenced him to five years in prison and ordered him to pay $5,000 in restitution. Sene then appealed.” Sene’s appeal depended upon the argument that, “contact between his vehicle and the victim is a necessary element of the crime.” The court of appeals disagreed. Judge Gilson, quoted a statute, “A motor vehicle operator who knows he [or she] is involved in an accident and knowingly leaves the scene of that accident is guilty of a second-degree crime if there is a fatality. The key phrase in the statute, Gilson said, is involved in an accident.”

Sene also argued that the statute was constitutionally vague, an argument with which the court also disagreed. “Courts in California, Iowa, Montana, Nevada and Texas, which have similarly worded statutes, have also rejected that argument.” Gilson said, “a statute is not impermissibly vague as long as a person of reasonable intelligence may reasonably determine what conduct is prohibited so that he or she may act in conformity with the law.”

Sene will be resentenced because, “there was confusion about how the trial judge, who was not identified, weighed the aggravating and mitigating factors when determining the sentence. And, Gilson said, the restitution award must be vacated because the judge set the amount without holding a hearing.”

Accidents happen all too often and whether you’re the victim or the alleged cause of one, good legal representation is crucial to finding an agreeable solution. David P. Schroth can help with your case—whether you are dealing with a personal injury issue or facing criminal proceedings. Contact David P. Schroth today to get the help you need and deserve in court.

Source:

http://www.njlawjournal.com/id=1202743422208/Court-No-Contact-Needed-for-LeavingtheScene-Conviction?mcode=1202617207189&curindex=12&curpage=2

New Jersey Legislators Have Marijuana Legalization Hearing

 

New Jersey legislators heard arguments from legalization advocates on Monday. Advocates urged legislators to consider legalization after decades of prohibition as a method to “boost tax revenue and end racial disparity within the criminal justice system.”

Ten panelists testified before the New Jersey Senate Judiciary Committee in support of legalizing marijuana. Committee Chairman Nicholas Scutari, “is backing a bill that could make New Jersey the fifth state to legalize marijuana, joining Alaska, Colorado, Oregon and Washington. But he acknowledged passing such a law will be a long process.” When the legislative session begins next year, Scutari plans to reintroduce his bill with some changes. However, Governor Chris Christie is “ardently opposed to legalizing recreational marijuana.”

The legalization advocates who testified before the Judiciary Committee included, “representatives from drug policy, medical, law enforcement and civil rights organizations. They sounded a consistent refrain, testifying that marijuana, is less addictive than both alcohol and tobacco, easier for youth to obtain and incorrectly labeled as a gateway drug.”

The argument that dominated the day—and captured the most attention—was the economic argument. “New Jersey wastes millions of dollars each year enforcing marijuana prohibition while marijuana use remains as popular as ever…legalization would improve safety through regulation and bring New Jersey millions of dollars in annual tax revenue.”

Support for marijuana legalization has grown throughout New Jersey. A Fairleigh Dickinson University poll surveyed voters throughout the state and 49 percent were in favor of legalization. “That marks an eight-point increase since the question was last posed in January 2014.”

Marijuana arrests are some of the most prevalent and most common criminal cases throughout the state—and the country. Legalization would definitely change the landscape of criminal law in New Jersey. In the meantime though, an experienced attorney can guide you through the process successfully. Call David P. Schroth for assistance with your legal questions today.

 

 

http://www.phillyvoice.com/new-jersey-legislators-hold-hearing-marijuana-legalization/

 

NJ Rapist Not Entitled to Juvenile Life Sentence Ban

 

There is a United States Supreme Court ruling that prohibits life sentences for juveniles for any crime except murder. However, a New Jersey appeals court ruled that this ban does not apply to Ricky Zuber, a man convicted for two gang rapes he participated in as a juvenile.

Zuber has been incarcerated since December 1981. “A three-judge Appellate Division panel, in a published decision, agreed with defendant Ricky Zuber that the Supreme Court’s 2010 ruling in Graham v. Florida should apply retroactively, but said it would not apply to his case since there is a likelihood that he will be paroled before he dies. Appellate Division Judge George Leone stated, “Defendant’s sentence of 55 years before parole is not the functional equivalent of life without parole, because it gives him a meaningful and realistic opportunity for parole well within the predicted life span for a person of defendant’s age.”

Zuber becomes eligible for parole in 2036, and he will be 72 years old. Leone cited, “commonly used life-expectancy tables, and said Zuber has a life expectancy of at least 80, which means he could be free for eight years of more if paroled at his earliest eligibility date.” Because Zuber could be free for eight or more years, if paroled at his earliest eligibility date, the ruling does not violate the U.S. Supreme Court’s ruling in Graham.

            Zuber was convicted for his involvement in two gang rapes when he was 17. The first victim “was a woman whose car had broken down and the second was a 16-year-old girl who was walking to school. Zuber was tried as an adult and convicted of multiple sex crimes and sentenced to two consecutive terms—a 50-year term with a 25-year minimum and a 60-year term with a30-year minimum for the second rape.”

Every case is different, but understanding precedent is crucial for trial. Make sure you have an expertly experienced lawyer advocating for you. Call David P. Schroth today to get the advice and answers you need for all your legal questions and concerns.

 

http://www.njlawjournal.com/this-weeks-news/id=1202741222163/SCOTUS-Juvenile-Life-Sentence-Ban-Doesnt-Apply-to-NJ-Rapist?mcode=1202617207189&curindex=58

 

 

 

 

 

 

 

 

 

 

 

 

Paris Attacks Could Hinder Muslim Plaintiffs in NYPD Suit

 

The Paris attacks last week could impact a civil rights suit over the New York Police Department’s surveillance program of New Jersey Muslims. “The November 13 terrorist attacks in Paris could make it harder for the plaintiffs to get a fair trial, according to some involved in the case, as well as some outside observers.”

The killing of 139 people throughout Paris is attributed to known Islamic extremists. Meanwhile, Hassan v. City of New York begins its retrial process after, “being reinstated by the U.S. Court of Appeals for the Third Circuit in October.” Observers familiar with the case argued that the recent attacks might impede the plaintiff’s ability to receive a fair trial.

Beth Bochnak is a jury consultant and president of the National Jury Project-East in Madison. She explained to the New Jersey Law Journal that, “This is not a time when you want to try a case with Muslims as the plaintiffs. It may be right now it would be too hard to find an unbiased group of people to sit on a case like this.” Additionally, Glenn Katon—the legal director for Muslim Advocates, which filed the suit—explained, “The Paris attacks could make the public, and prospective jurors, more accepting of reductions in civil liberties in the name of national security. It will produce a burden. Our job is to show, ‘OK, you’ve got this horrible attack in Paris; we had a horrendous attack here in 2001; what does that mean?’ The point that we will make to the court and the jury is the NYPD has to show a connection between what they’re doing and keeping people safe.”

Hassan v. City of New York argues that the NYPD chose to conduct surveillance of Muslims in New Jersey after September 11th, 2001 because of their religion. The program ended in 2012 after The Associated Press revealed the story. U.S. District Judge William Martini dismissed the case in 2014 after finding no injury-in-fact, “let alone one traceable to the city’s surveillance. He also concluded that the plaintiffs failed to state a claim because the likely purpose of the surveillance was to locate terrorists, rather than to discriminate. The Third Circuit reversed in October.”

The impact of the Paris attacks on Hassan v. City of New York remains unknown for now, but the jurors will have to honor their duty to follow the law. If you have legal questions or concerns, contact David P. Schroth. His years of experience with a range of cases—and a proven track record of success—leave him expertly prepared to handle your case and questions. Contact him today to start getting answers and solutions.

 

http://www.njlawjournal.com/this-weeks-news/id=1202742559533/Paris-Attacks-Could-Hamper-Muslim-Plaintiffs-in-NYPD-Suit?slreturn=20151017130831

 

 

 

 

 

 

 

Traffic Stop Rights

The New Jersey Supreme Court recently reaffirmed an individual’s right to remain silent during a traffic stop in the case State of New Jersey v. Manaf Stas, A-14-11. The question of when an individual has the right against self-incrimination (via the fifth amendment) varies by state, and the New Jersey Supreme Court’s decision clearly indicates that an individual has the right to remain silent during traffic stops regardless of whether or not the defendant is under arrest.

On April 16th in 2008, police began a routine traffic stop. Two men stood outside a minivan after a collision with a parked car. Upon initial inspection, the police officers were unable to determine which man had driven the vehicle. One of the men, Joseph Putz, was questioned and Putz cooperated by answering accordingly. Meanwhile, Manaf Stas stood at a distance and said nothing to confirm or deny Putz’s account. The police administered a field sobriety test on Putz, and then arrested him for a DUI.

Stas was asked some questions about his identity and the vehicle, which he answered. They did not ask him about driving the vehicle because Putz had told the police he was driving. However, police later learned that Stas had borrowed the minivan from his sister. Later Putz testified in court that Stas drove the minivan, contradicting his earlier statement to police.

The Municipal Court found Putz guilty of DWI and Stas guilty of allowing an intoxicated person to drive a vehicle that was under his custody and control. The decision was appealed several times. The Supreme Court ruled that, “We hold that the…use of a defendant’s silence as substantive evidence of his guilt and for the purpose of assessing his credibility violated defendant’s federal constitutional privilege against self-incrimination, and his state statutory and common law privilege against self-incrimination.” The Court’s ruling also adds that, “the self-incrimination issue does not strictly turn on whether the silence preceded or followed the administration of Miranda warnings.”

State v. Stas is important for New Jersey drivers who may one day encounter police during a traffic stop. Knowing the extent of your rights is imperative, and having an attorney who is able to effectively defend you in court is essential. David P. Schroth has years of experience solving his clients’ problems—from family law to criminal law—and is ready to take on your case. Call him today to start finding a solution to your legal concerns.

 

Source:

http://www.njlawjournal.com/id=1202571245917/State-v-Stas

 

 

 

 

 

 

New Protections to Unauthorized Immigrants under 21

A New Jersey Appellate court ruled this week that, “Young adults, including unauthorized immigrants, should not have their custody petitions denied solely because they reached age 18, a New Jersey appellate court ruled this week.” This application is the beginning of gaining “federal special immigrant juvenile status, which protects individuals from being returned to a country where they believe their lives are in danger.”

The young adult in the case, identified only as E.A.C.P. was being “menaced by local gangs” while living in Guatemala. His sister, who already lived in New Jersey, provided financial support to her brother and mother. When she began to fear for his safety amongst the gangs, she made arrangements to bring him to the United States. For example, his siter enrolled him in high school and began the process of applying for legal custody of her brother.

Judge Susan Reisner, of the appellate court noted that, “the New Jersey Supreme Court in August issued a ruling that family court judges have no obligation to apply or interpret federal immigration law, but they are obligated to make the factual findings set forth in the federal special immigrant juvenile regulations. Those findings cover the possibility of abuse, neglect, or abandonment in the home country, family reunification, and the best interested of the child.”

Since E.A.C.P. is under 21, the court said that the trial court should have continued its role in determining the facts for his special immigrant juvenile case. Additionally, the sister’s original custody case will likely proceed through normal channels as if it were a run-of-the-mill custody case. “The Age of Majority Act” provides an exception to the general custody cases for those up to age 18. People between 18 and 21 who are enrolled in school below college level allows for the same statute provides courts latitude to take whatever action is deemed appropriate.

If you have legal questions of your own, contact David P. Schroth to get expert legal advice. David’s years of experience dealing with a variety of family law matters enable him to offer the legal direction of a seasoned lawyer.

 

http://www.nj.com/news/index.ssf/2015/11/he_is_18_and_unauthorized_but_can_be_considered_a.html

 

 

 

 

 

 

 

 

 

Adopted Children and Estate Planning

 

Families all across America happily grow thanks to successful adoptions. While there are certainly special opportunities for expanding families, there are also some special circumstances to take into consideration. In particular, families with adopted children or stepchildren that are not legally adopted should think about the importance of estate planning options.

In almost all estate planning circumstances, adoptive children are placed on an equal footing with biological children. Thus, “adopted and biological children are treated the same way under a state’s intestate succession laws, which controls who inherits property in the absence of a will.” Additionally, adopted children are treated the same as biological children for, “Purposes of wills or trusts that provide for gifts or distributions to a class of persons such as “children,” “grandchildren,” or “lineal descendants,”—even if the child was adopted after the will or trust was executed.”

However, stepchildren do not have inheritance rights in most circumstances, unless legally adopted by the spouse. It is absolutely vital that if you want your stepchildren to be able to share your estate, they must be adopted or your estate plan must be amended properly to include them expressly.

The other aspect of adoption is the impact on the child’s relationship with their other parent. In several states, when a stepparent adopts a child, the adoption severs the parent-child relationship with the other biological parent. This means that the child cannot inherit from that particular biological parent’s branch of the family.

If you have a child or children who are adopted, or stepchildren, that are not legally adopted, it is important to discuss your concerns with proper legal guidance. No matter what your family concerns are legally, David P. Schroth has the experience necessary to provide sound advice and support throughout the process. Call David P. Schroth today for expert advice you can trust.

 

http://www.jdsupra.com/legalnews/addressing-adopted-children-or-24760/

 

 

 

 

 

Comparative Negligence

 

The New Jersey Supreme Court recently decided, “Whether the issue of an employee’s comparative negligence in a workplace construction injury case should be submitted to the jury.” New Jersey law does not, “allow the comparative negligence in workplace product liability claims pursuant to Suter v. San Angelo Foundry Co.” The argument for submitting to a jury in the recent case, Fernandes v. DAR, is that construction workers do not have a meaningful choice and cannot be held comparatively negligent.

The New Jersey Supreme Court ruled that a violation of OSHA by a contractor and its subcontractors is evidence of negligence. The Supreme Court observed, “the relevant injury in gauging the level of an employee’s responsibility for his or her injuries is whether he or she failed to use the care of a reasonably prudent person under all of the circumstances, either in continuing to work in the face of a known risk or in the manner in which he or she proceeded in the face of that known risk. The issue of a plaintiff’s negligence may only be submitted to the jury when the evidence adduced at trial suggests that a worker acted unreasonably in the face of a known risk and that conduct somehow contributed to his or her injuries. The fact that plaintiff was a member of the workforce, with all the compulsions attendant to that status, is a factor which is subsumed in the jury’s analysis of whether he acted prudently.”

This new opinion may also have an impact on the Appellate decision in Tarabokia v. Structure Tone, 429 N.J. Super. 103 (App. Div. 2012). In Tarabokia, the Appellate court decided that, “a general contractor did not have a non-delegable duty to protect employees of its subcontractors,”

The impact of the Fernandes v. DAR decision remains to be seen, but getting quality legal help with your negligence case is imperative for success. David P. Schroth has worked on an abundance of negligence cases with a proven track record of success. His expertise can help save you precious time, energy, and money throughout your legal battle and make sure you receive the support you need and deserve. Contact David P. Schroth today to make sure your case gets all the care it needs.

 

http://www.natlawreview.com/article/understanding-recent-new-jersey-decision-comparative-negligence