http://www.albuquerquecriminallawyerblog.com/ Published By Collins & Collins, P.C. en Copyright 2012 Mon, 14 May 2012 11:17:16 -0700 http://www.sixapart.com/movabletype/ http://www.rssboard.org/rss-specification AlbuquerqueCriminalLawyerBloghttp://feedburner.google.com <p>A recent case before the New Mexico Court of Appeals clarified whether a court could sentence an individual to more time than agreed to in a plea agreement if a portion of that sentence was suspended. In <a href="http://www.collinsattorneys.com/docs/state_v._miller__nmca_2012__-_sentencing_outside_of_plea_agreement.pdf">State v. Miller</a>, the Court held that the suspended portion of the sentence counted as part of the sentence and therefore courts could not <a href="http://www.collinsattorneys.com/lawyer-attorney-1923236.html">sentence a defendant</a> for more time than agreed to under the plea agreement, regardless of whether a portion of the sentence is suspended or not.</p> <p>A<a href="http://www.collinsattorneys.com/lawyer-attorney-1795937.html"> plea agreement</a> is an agreement between a defendant and the prosecutor where a defendant pleads guilty to a charge in exchange for certain concessions like a reduced sentence, dismissal of other charges or other recommendations to the court favorable to the defendant. The agreement is then presented to the court, which must accept or deny it. Once the court accepts the agreement, it is binding on all parties, including the court itself. </p> <p>In <em>State v. Miller</em>, the defendant entered into a plea agreement whereby he would receive a sentence of no less than ten and no more than forty years in prison. After the agreement was accepted by the district court judge, the court sentenced him to forty-two years imprisonment with a suspension of nine years, for a total initial sentence of thirty-three years. The defendant appealed, arguing that the forty-two year sentence violated the plea agreement. The New Mexico Court of Appeals agreed. </p> <p>At the appeal, the State argued that a forty-two year sentence was consistent with the plea agreement because the plea agreement stipulated that the Defendant would not be given more than 40 years "at initial sentencing." The state argued that the forty-year limitation in the agreement referred to the initial period of incarceration, and not the sentence itself. Since Defendant's initial period of incarceration was thirty-three years, the State argued, the agreement was not violated when the Defendant was sentenced to forty-two years with a nine-year suspension. The New Mexico Court of Appeals disagreed. </p> <p>The Court Appeals held that under New Mexico case law, courts construe plea agreements according to the Defendant's reasonable understanding of the plea. It is also settled in New Mexico that any part of a sentence that is initially suspended is counted as part of the sentence. </p> <p>The Court of Appeals made clear that the fact that a sentence is suspended does not change the length of a sentence. For example, a court may not sentence a defendant to 500 years with a suspension of 498 years without violating a plea agreement for a maximum sentence of two years. Once a court accepts a plea agreement, it may not sentence a defendant to more time than agreed to, regardless of whether a portion of the sentence is suspended.</p> <p>In this case, the Court found that it was reasonable for the Defendant to understand that his total sentence, and not just the initial period of incarceration, would be no longer than forty years. The Court also noted that if the State wanted to make sure that the Defendant served a certain period of time, it could have easily made it clear in the plea agreement. Then of course, the district court could have refused the plea agreement completely since this is generally within the discretion of the judge.</p> <p><a href="http://www.collinsattorneys.com/lawyer-attorney-1448101.html"><div style="text-align: center;"><em><strong>DISCLAIMER</strong></em></div></a></p> <p><strong>Related Reading:</strong><br /> <ul><br /> <li><a href="http://www.albuquerquecriminallawyerblog.com/2012/01/the-law-of-contracts-and-crimi.html">The Law of Contracts and Criminal Plea Agreements in New Mexico</a></li></li><br /> <li> <a href="http://www.albuquerquecriminallawyerblog.com/2012/04/supreme-court-extends-sixth-am.html">Supreme Court Extends Sixth Amendment Protection to Rejected Plea Offers</a></li><br /> </ul></p> <p><a href="http://www.collinsattorneys.com/index.html">Collins & Collins, P.C.</a><br /> <a href="http://www.collinsattorneys.com/lawyer-attorney-1448087.html">Albuquerque Attorneys</a><br /> </p><div class="feedflare"> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=tx97PPrn1xU:RVfooVsRQZ0:yIl2AUoC8zA"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=yIl2AUoC8zA" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=tx97PPrn1xU:RVfooVsRQZ0:V_sGLiPBpWU"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=tx97PPrn1xU:RVfooVsRQZ0:V_sGLiPBpWU" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=tx97PPrn1xU:RVfooVsRQZ0:F7zBnMyn0Lo"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=tx97PPrn1xU:RVfooVsRQZ0:F7zBnMyn0Lo" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=tx97PPrn1xU:RVfooVsRQZ0:qj6IDK7rITs"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=qj6IDK7rITs" border="0"></img></a> </div><img src="http://feeds.feedburner.com/~r/AlbuquerqueCriminalLawyerBlog/~4/tx97PPrn1xU" height="1" width="1"/> http://feedproxy.google.com/~r/AlbuquerqueCriminalLawyerBlog/~3/tx97PPrn1xU/sentencing-in-violation-of-a-c.html http://www.albuquerquecriminallawyerblog.com/2012/05/sentencing-in-violation-of-a-c.html Criminal Pleas and Dispositions Sentencing Mon, 14 May 2012 11:17:16 -0700 http://www.albuquerquecriminallawyerblog.com/2012/05/sentencing-in-violation-of-a-c.html <p>The<a href="http://www.collinsattorneys.com/docs/4th_amendment.pdf"> Fourth Amendment of the U.S. Constitution</a> protects individuals from <a href="http://www.collinsattorneys.com/lawyer-attorney-1490174.html">unreasonable searches and seizures</a> without a warrant supported by probable cause. However, the U.S. Supreme Court recently held in<a href="http://www.collinsattorneys.com/docs/florence_v._board_of_chosen_freeholders_of_county_of_burlington__ussc_2012__strip_searches_arrestees.pdf"><em> Florence v. Board of Chosen Freeholders of County of Burlington</em></a> that routine comprehensive strip-searches before any arrestee is admitted into the general prison population were constitutional regardless of the arrestee's particular offense or criminal history. <br /> <br /> The underlying facts in <em>Florence</em> involved a Defendant arrested for a minor, non-violent offense. Upon arrest and before being introduced into the jail's general population, the Defendant was subjected to the standard inmate intake procedures employed by Burlington County jails.<br /> <br /> The procedures employed by the jail included requiring arrestees to shower with a delousing agent and submitting to visual bodily inspection for injuries, scars, marks, gang tattoos, and contraband. Inspection included instructing arrestees to open their mouth, lift their tongue, hold out their arms, lift their genitals, etc. The procedures apply to all arrestees entering the general prison population regardless of offense, behavior, criminal history, or demeanor. <br /> <br /> The Defendant argued that this kind of search was a violation of an individual's Fourth and Fourteenth Amendment privacy rights if the corrections officers did not have reason to suspect the particular inmate of concealing contraband, drugs, or weapons. <br /> <br /> The Supreme Court disagreed, holding that forcing corrections officers to make a judgment call of the kind placed the entire prison population at risk. On the other hand, the Court held that a uniform policy struck the correct balance between the privacy rights of inmates and the security interests of the prison.<br /> <br /> The Court explained that maintaining safety and order in prisons required a particular expertise and experience that a court of law did not possess. In situations where a regulation impinges on the constitutional rights of inmates, courts should defer to the judgment of prison officials if the regulation "is reasonably related to legitimate penological interests." In other words, unless there is evidence that the prison officials have exaggerated their response to the situation, regulations of this kind should be upheld. <br /> <br /> To come to this determination, the Court weighed the legitimate interest of prison officials in ensuring safety and order in their institution against the privacy interests of individuals arrested for minor, non-violent offenses.<br /> <br /> In the opinion of the Court, jails and prisons have a significant interest in performing a comprehensive strip search of every inmate that comes into contact with the general prison population to prevent the spread of disease, identify the need for immediate medical attention, identify gang members, and detect and deter contraband including drugs and weapons. Considering the information available to officers about the arrestee and the time constraints involved at intake, conducting a less invasive search on certain types of detainees would be unworkable. <br /> <br /> The Court cited evidence that the seriousness of an offense is not a good predictor of whether a person is likely to possess contraband or be a dangerous criminal. Additionally, the court determined that it would cause serious difficulties in implementation for prison officials to classify arrestees by their current and prior offenses before an intake search. In effect, it would place prison officers in the position of having to make a legal constitutional determination during the brief intake process with the little information available to them at the time. This would in turn create a larger risk for the entire jail population because officers would be less inclined to conduct thorough searches in debatable cases in order to avoid liability. <br /> <br /> Balancing this significant interest of prisons in maintaining order and safety with the privacy interests of inmates, the Court held that uniform comprehensive strip-searches before any arrestee is admitted into the general prison population is not contrary to an individual's Fourth Amendment privacy rights. Considering the risks and logistical problems involved, the Court found this to be true regardless of the severity and nature of the offense or the arrestee's demeanor. <br /> <br /> It remains to be seen how this will play out in the jails across the country. It takes little imagination to predict the many abuses that will follow this opinion. Many may view this as a strike against crime. However, one might pause to consider that strip searches of harden gangsters really has no bearing or relationship at all to a strip search of a young woman or man suspected of shoplifting or even a young mother of 3 picked up on warrants for traffic violations. </p> <p></p> <p><br /> <a href="http://www.collinsattorneys.com/index.html">Collins & Collins, P.C.</a><br /> <a href="http://www.collinsattorneys.com/lawyer-attorney-1448087.html">Albuquerque Attorneys</a> <br /> <br /> <a href="http://www.collinsattorneys.com/lawyer-attorney-1448101.html"><div style="text-align: center;"><em><strong>DISCLAIMER</strong></em></div></a></p><div class="feedflare"> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=lAvKh2UTXC0:rq1joAVZDyA:yIl2AUoC8zA"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=yIl2AUoC8zA" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=lAvKh2UTXC0:rq1joAVZDyA:V_sGLiPBpWU"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=lAvKh2UTXC0:rq1joAVZDyA:V_sGLiPBpWU" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=lAvKh2UTXC0:rq1joAVZDyA:F7zBnMyn0Lo"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=lAvKh2UTXC0:rq1joAVZDyA:F7zBnMyn0Lo" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=lAvKh2UTXC0:rq1joAVZDyA:qj6IDK7rITs"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=qj6IDK7rITs" border="0"></img></a> </div><img src="http://feeds.feedburner.com/~r/AlbuquerqueCriminalLawyerBlog/~4/lAvKh2UTXC0" height="1" width="1"/> http://feedproxy.google.com/~r/AlbuquerqueCriminalLawyerBlog/~3/lAvKh2UTXC0/jailhouse-strip-searches-for-m.html http://www.albuquerquecriminallawyerblog.com/2012/04/jailhouse-strip-searches-for-m.html Criminal Procedure Misdemeanor Mon, 30 Apr 2012 11:54:47 -0700 http://www.albuquerquecriminallawyerblog.com/2012/04/jailhouse-strip-searches-for-m.html <p>The <a href="http://www.collinsattorneys.com/docs/4th_amendment.pdf">4th Amendment to the U.S. Constitution</a> protects individuals from <a href="http://www.collinsattorneys.com/lawyer-attorney-1490174.html">unreasonable searches and seizures</a>. The New Mexico Children's Code further protects juveniles and sometimes expands their constitutional rights. <br /> <br /> In a recent opinion involving <a href="http://www.collinsattorneys.com/lawyer-attorney-1448142.html">juvenile criminal charges</a>, however, the New Mexico Court of Appeals held that in relation to 4th Amendment searches and seizures, under the Children's Code minors have no greater rights than adults. Specifically, an officer is not required to advise a minor of his right to refuse consent to a search of his vehicle. <br /> <br /> The underlying case in <em>State v. Carlos A</em>. involved a routine traffic stop for a non-functioning license plate light. The Defendant driver was seventeen years old at the time. When the officer pulled the Defendant over, he noticed a strong odor of marijuana and asked Defendant if he would consent to a search of his person. <br /> <br /> The driver consented. Upon finding nothing suspicious from the search, the officer called for backup and when backup arrived asked Defendant whether he would consent to a search of his car. Defendant agreed to the search whereupon marijuana and other paraphernalia were found. The defendant was then placed under arrest and charges were brought against him. The time between the stop and the end of the automobile search was no more than ten minutes and the entire exchange was non-threatening and cordial at all times.<br /> <br /> At trial, the Defendant filed a motion to suppress the evidence from the search of his car. The Defendant argued that his consent was involuntary because officers were required to inform him of his right to deny consent to the search due to his status as a minor under the New Mexico Children's Code. The district court and the New Mexico Court of Appeals both disagreed. <br /> <br /> Under the 4th Amendment, any unreasonable search or seizure by government agents requires a search warrant unless there is a recognized exception. Consent is one of the exceptions to the warrant requirement. To demonstrate consent, the prosecution must show that under the totality of the circumstances, the consent was voluntary and not the product of intimidation or coercion. <br /> <br /> To assess the totality of the circumstances, a court must evaluate all of the factors involved, including the particular situation of the person giving consent, the circumstances of the detention, and the behavior of the government agents requesting consent. One of the factors considered is whether the defendant was advised of his or her right to refuse consent. However, being advised of the right to refuse consent is only one factor to consider and not dispositive of the question of whether consent was voluntary under the totality of the circumstances analysis. <br /> <br /> Having established that the 4th Amendment does not require a police officer to advise an adult of their right to refuse consent to a search, the Court of Appeals went on to analyze whether the New Mexico Children's Code required it when the person giving consent was a juvenile. <br /> <br /> Under Section 32A-2-14(C) of the Children's Code any juvenile interrogated by police must first be advised of his or her rights. This provision basically mirrors the 5th Amendment right to remain silent and a warning that anything said will be used against them. However, the Court in this case refused to expand this protection to 4th Amendment searches and seizures making the distinction between a consensual search and a custodial interrogation.<br /> Therefore, as the law in New Mexico stands, a juvenile's 4th Amendment rights are not violated if he or she is not advised of the right to refuse consent to a search if the consent was otherwise voluntary. While the fact that the juvenile was not made aware of their right to refuse consent will be a factor in determining whether the consent was voluntary, it is not dispositive. If, as in this case, the detention was brief, in public, and the officers showed no signs of intimidation, it is likely that consent will be deemed voluntary even if the juvenile was not advised of his right to refuse. <br /> <br /> Each case is unique and requires individual analysis. Moreover, the case does nothing that would allow a nonconsensual search. In any case where the search was non-consensual or perhaps unknowing, it is important to raise these issues with your child's <a href="http://www.collinsattorneys.com/lawyer-attorney-1448230.html">criminal defense attorney</a>. </p> <p></p> <p><br /> <a href="http://www.collinsattorneys.com/index.html">Collins & Collins, P.C.</a><br /> <a href="http://www.collinsattorneys.com/lawyer-attorney-1448087.html">Albuquerque Attorneys</a> <br /> <br /> <a href="http://www.collinsattorneys.com/lawyer-attorney-1448101.html"><div style="text-align: center;"><em><strong>DISCLAIMER</strong></em></div></a></p><div class="feedflare"> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=7QWgMayxurU:t5fffa5eU0I:yIl2AUoC8zA"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=yIl2AUoC8zA" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=7QWgMayxurU:t5fffa5eU0I:V_sGLiPBpWU"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=7QWgMayxurU:t5fffa5eU0I:V_sGLiPBpWU" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=7QWgMayxurU:t5fffa5eU0I:F7zBnMyn0Lo"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=7QWgMayxurU:t5fffa5eU0I:F7zBnMyn0Lo" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=7QWgMayxurU:t5fffa5eU0I:qj6IDK7rITs"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=qj6IDK7rITs" border="0"></img></a> </div><img src="http://feeds.feedburner.com/~r/AlbuquerqueCriminalLawyerBlog/~4/7QWgMayxurU" height="1" width="1"/> http://feedproxy.google.com/~r/AlbuquerqueCriminalLawyerBlog/~3/7QWgMayxurU/do-minors-have-broader-rights.html http://www.albuquerquecriminallawyerblog.com/2012/04/do-minors-have-broader-rights.html Constitutional Rights Criminal Offenses and Criminal Charges Defenses Evidence Juvenile Criminal Charges Mon, 23 Apr 2012 12:47:17 -0700 http://www.albuquerquecriminallawyerblog.com/2012/04/do-minors-have-broader-rights.html <p>The "plain view doctrine" applies to <a href="http://www.collinsattorneys.com/lawyer-attorney-1490174.html">searches and seizures under the Fourth Amendment of the U.S. Constitution</a>. In simple terms, the plain view doctrine allows an officer to seize evidence without a warrant if it is in plain view of the officer. <br /> <br /> For the plain view doctrine to apply, the seizure must meet the following three requirements: (1) the officer must have been legally on the premises, (2) the object must have been in plain view, and (3) it must have been immediately apparent that the object was incriminating.<br /> <br /> An officer has to be legally on the premises for the plain view doctrine to apply. If the evidence was viewed from a public space, the officer was legally allowed to be on the premises. This would apply when an officer views a gun inside an open window of a house from a public sidewalk or when an officer sees a bag of narcotics on the dashboard of a vehicle at a routine traffic stop. <br /> <br /> If, on the other hand, the officer is inside a private residence or place of business, the officer is required to have probable cause or a warrant to be on the premises in the first place. Officers can also legally be inside a private residence or place of business when there is consent or when exigent circumstances require it.<br /> <br /> The object must be in plain view. An officer is not allowed to move objects to get a better view of an object. For example, a police officer is not allowed to move the curtains in an open window of a residence to get a better view of the home. Officers are also prohibited from moving an object to get a better view of the serial number unless they have a warrant to do so. <br /> <br /> Similarly, officers are not allowed to open closed containers unless there is a warrant to search for an object that is likely to fit in said container. For example, if an officer has a warrant to search a suspect's home for a stolen television, the officer is not allowed to open the suspect's purse. <br /> <br /> The incriminating character of the evidence must be apparent immediately. Incriminating character of evidence usually involves objects that are likely to be stolen, items used to commit crimes, illegal items, or other evidence of criminal activity. <br /> <br /> For example, if police are serving a search warrant for an unrelated crime and find a table with hundreds of different credit cards from different banks and under different names, it is likely that they are stolen and therefore the plain view doctrine applies. <br /> <br /> Items used to commit crimes include all types of weapons as well as gadgets like prohibited credit card scanners. Illegal items often involve drugs. The illegal items might also relate to instrumentalities of crime under investigation. For example, if police are serving a search warrant for evidence of weapons used in a bank robbery and an officer sees a black ski mask on a chair like the one worn by the suspect at the scene, the mask may be taken into evidence.<br /> <br /> Officers and prosecutors may try to take advantage of the plain view doctrine in order to admit otherwise inadmissible evidence. They may venture into areas where they are not legally authorized to be. They may enter a home or business without the proper consent. They may move items in order to bring an item into plain view. They may seize evidence that is not particularly indicative of criminal activity.<br /> <br /> The 4th Amendment is among the greatest protections afforded citizens. If evidence has been seized from your home, business, car or other private property, it is important to consult with an <a href="http://www.collinsattorneys.com/lawyer-attorney-1448230.html">experienced criminal law attorney</a> to ensure that your Fourth Amendment rights are protected. </p> <p></p> <p><a href="http://www.collinsattorneys.com/index.html">Collins & Collins, P.C.</a><br /> <a href="http://www.collinsattorneys.com/lawyer-attorney-1448087.html">Albuquerque Attorneys</a> <br /> <br /> <a href="http://www.collinsattorneys.com/lawyer-attorney-1448101.html"><div style="text-align: center;"><em><strong>DISCLAIMER</strong></em></div></a></p><div class="feedflare"> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=6v8rhcjm9i8:6ClSTFZgwN4:yIl2AUoC8zA"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=yIl2AUoC8zA" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=6v8rhcjm9i8:6ClSTFZgwN4:V_sGLiPBpWU"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=6v8rhcjm9i8:6ClSTFZgwN4:V_sGLiPBpWU" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=6v8rhcjm9i8:6ClSTFZgwN4:F7zBnMyn0Lo"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=6v8rhcjm9i8:6ClSTFZgwN4:F7zBnMyn0Lo" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=6v8rhcjm9i8:6ClSTFZgwN4:qj6IDK7rITs"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=qj6IDK7rITs" border="0"></img></a> </div><img src="http://feeds.feedburner.com/~r/AlbuquerqueCriminalLawyerBlog/~4/6v8rhcjm9i8" height="1" width="1"/> http://feedproxy.google.com/~r/AlbuquerqueCriminalLawyerBlog/~3/6v8rhcjm9i8/the-plain-view-doctrine.html http://www.albuquerquecriminallawyerblog.com/2012/04/the-plain-view-doctrine.html Constitutional Rights Defenses Evidence Thu, 19 Apr 2012 11:35:18 -0700 http://www.albuquerquecriminallawyerblog.com/2012/04/the-plain-view-doctrine.html <p>In New Mexico there are time limits that prosecutors and courts must adhere to in order to ensure due process. One of the limits involves timely preliminary hearings. These time limits are very important to the rights of accused persons. They are taken seriously by the courts of New Mexico and often the form the basis for dismissal. <br /> <br /> The time limits come up in a variety of ways from the <a href="http://www.collinsattorneys.com/lawyer-attorney-1490172.html">speedy trial rule</a> to discovery violations to statutes of limitations. A lesser known violation of time limits came up recently in the in State v. Leticia T.. In that case, the <a href="http://coa.nmcourts.gov/">New Mexico Court of Appeals</a> ruled on what type of remedy is available to a juvenile who did not receive a timely preliminary hearing when the State was seeking an adult sentence. <br /> <br /> The underlying case in <a href="http://www.collinsattorneys.com/docs/state_v._leticia_t.__nmca_2012__juvenile_preliminary_hearing_time_limits.pdf">State v. Leticia T.</a> involved a sixteen-year-old child charged with assault and battery of a police officer, for which the State sought an adult sentence. The child was taken into custody and her preliminary hearing was held twenty-four days after the prosecution filed a notice to seek an adult sentence. <br /> <br /> Under Rule 10-213 (B) of the New Mexico Children's Court Rules, a preliminary hearing must be conducted within fifteen days after a notice to seek an adult sentence, unless the case is presented to a grand jury or the child waives her right to a preliminary hearing or grand jury. Under Section 32A-2-20 (A) of the New Mexico Children's Code, a preliminary hearing must be conducted within ten working days of the State's notice to seek an adult sentence. <br /> <br /> In the present case, the Court did not go into the question of whether the Defendant was entitled to a preliminary hearing within ten or fifteen days of the filing of notice to seek adult charges because both were violated. Instead, the Court went on to analyze what remedy is appropriate when either statute is violated, since both are "worded in mandatory terms." <br /> <br /> According to the Court of Appeals, dismissal of the charges is not the proper remedy for a violation of the mandatory time limits for a preliminary hearing. Under Children's Court Rule 10-101 (A)(2)(b), when there is a notice to seek adult charges and the child is a "youthful offender," the Rules of Criminal Procedure govern all proceedings in Children's Court, unless specifically provided in the Children's Court Rules. Children's Court Rule 10-144 specifically provides that error by the court or any party, including violation of time limits, is not ground for dismissal unless this is inconsistent with the interests of justice. <br /> <br /> In this case, the Court found that despite the violation of Rule 10-213 (B)'s preliminary hearing requirement, there were no grounds for dismissal of the charges. Similarly, the Court found that dismissal was not the proper remedy for a violation of Section 32A-2-20 (A) of the New Mexico Children's Code. <br /> <br /> To warrant dismissal under this Section, a defendant child must show prejudice. In other words, the Defendant must show that the delay in their preliminary hearing past ten days of the notice was not due to scheduling conflicts and other administrative reasons, but because there was prejudice against her either on the part of the court or state. The Court did not find such prejudice in this case and therefore denied the Defendant's motion to dismiss.<br /> <br /> The Court itself understood that its ruling in this case represents the erosion of the protections given to juveniles under the New Mexico Children's Court Rules and Children's Code. However, the Court stated that it had no choice because only the <a href="http://nmsupremecourt.nmcourts.gov/">New Mexico Supreme Court</a> can write or rewrite rules of court procedure. <br /> <br /> The Court in this case echoed the New Mexico Supreme Court in calling on the Children's Rules Committee to revisit the time limits for youthful offenders. As the law in New Mexico stands today, even though the rules are written in mandatory language, there is effectively no real remedy for the youthful offenders when they are not given a preliminary hearing in a timely manner. <br /> <br /> The time limits in criminal prosecutions often rely on the discretion of the court and a determination of prejudice to the defendant. These time limits are important and should and typically are challenged by <a href="http://www.collinsattorneys.com/lawyer-attorney-1448230.html">criminal defense attorneys</a>. Though the outcome here suggests otherwise, time limits are often the first and best line of defense.</p> <p></p> <p><a href="http://www.collinsattorneys.com/index.html">Collins & Collins, P.C.</a><br /> <a href="http://www.collinsattorneys.com/lawyer-attorney-1448087.html">Albuquerque Attorneys</a> <br /> <br /> <a href="http://www.collinsattorneys.com/lawyer-attorney-1448101.html"><div style="text-align: center;"><em><strong>DISCLAIMER</strong></em></div></a></p><div class="feedflare"> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=JLFrYhbYWkA:He_x6vPZeJ4:yIl2AUoC8zA"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=yIl2AUoC8zA" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=JLFrYhbYWkA:He_x6vPZeJ4:V_sGLiPBpWU"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=JLFrYhbYWkA:He_x6vPZeJ4:V_sGLiPBpWU" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=JLFrYhbYWkA:He_x6vPZeJ4:F7zBnMyn0Lo"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=JLFrYhbYWkA:He_x6vPZeJ4:F7zBnMyn0Lo" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=JLFrYhbYWkA:He_x6vPZeJ4:qj6IDK7rITs"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=qj6IDK7rITs" border="0"></img></a> </div><img src="http://feeds.feedburner.com/~r/AlbuquerqueCriminalLawyerBlog/~4/JLFrYhbYWkA" height="1" width="1"/> http://feedproxy.google.com/~r/AlbuquerqueCriminalLawyerBlog/~3/JLFrYhbYWkA/timely-preliminary-hearings-an-1.html http://www.albuquerquecriminallawyerblog.com/2012/04/timely-preliminary-hearings-an-1.html Constitutional Rights Criminal Procedure Juvenile Criminal Charges Wed, 18 Apr 2012 22:12:52 -0700 http://www.albuquerquecriminallawyerblog.com/2012/04/timely-preliminary-hearings-an-1.html <p>Cellular phones have become a ubiquitous part of everyday life. According to CTIA Wireless Association, 302.9 million people in the U.S.--over 96% of the population--carry a cell phone. However, the price of being permanently "connected" via your cell phone may just be your privacy. <br /> <br /> Several times each minute, cell phones register with the network when getting a wireless signal. This function cannot be turned off, and creates a very accurate record of where an individual is virtually every minute of their lives. Police and other law enforcement increasingly use cell phone tracking in emergency and non-emergency situations alike. <br /> <br /> The ACLU recently released <a href="http://www.aclu.org/protecting-civil-liberties-digital-age/cell-phone-location-tracking-public-records-request">a study</a> that examined the use of cell phone tracking by a number of law enforcement departments. The findings contains findings from over 380 public records requests and 200 responses made to and from police departments from 31 states around the country. To say the least, the results are alarming. According to the ACLU, police departments are repeatedly using cell phone tracking in situations where they have not obtained a warrant in <a href="http://www.collinsattorneys.com/lawyer-attorney-1490174.html">violation of the 4th Amendment</a>.<br /> <br /> Under the <a href="http://www.collinsattorneys.com/docs/4th_amendment.pdf">4th Amendment of the U.S. Constitution</a>, an individual has the right to be free from unreasonable searches and seizures unless the search or seizure is supported by a warrant based on probable cause. Even though there is no law specifically concerning cell phone tracking, an analogy can be made with the recent case of <em>US v. Jones</em> where the Supreme Court ruled that government agents were required to obtain a warrant before placing a GPS tracking system in a suspected drug dealer's car. Attorneys argue that it should be no different when a person is tracked through the GPS in their cell phone. However, it seems that police departments around the country have routinely failed to obtain warrants for purposes of tracking individuals' cell phone activity. <br /> <br /> Nearly all of the 200 responses received by the ACLU from state and local law enforcement departments stated that they employed cell phone location tracking in some way. Only 10 respondents stated that their department never tracked cell phones. The practice is so common that cell phone companies have manuals for communicating with police officers and some charge police departments "surveillance fees." Some police departments have even acquired their own cell phone tracking equipment. A very small number of respondents reported regularly obtaining a warrant to access and individual's phone location information.<br /> <br /> In New Mexico, the ACLU sent out requests to the Albuquerque, Las Cruces, and Roswell police departments. Only the Albuquerque PD (APD) responded to the request. The request and response can be found at: <a href="https://www.aclu.org/protecting-civil-liberties-digital-age/cell-phone-location-tracking-documents-new-mexico#Albequerque">https://www.aclu.org/protecting-civil-liberties-digital-age/cell-phone-location-tracking-documents-new-mexico#Albequerque</a>. <br /> <br /> In its response, the APD stated that it obtains a warrant or subpoena based on probable cause except in cases of "exigency." The response did not include an explanation of the standards used to determine exigency. The APD response also stated that any records obtained from a cell phone company were stored with each case file in the APD Records division, presumably indefinitely. <br /> <br /> One of the biggest problems cited by the ACLU was the lack of a uniform laws concerning cell phone tracking policies. Federal and state laws regarding electronic surveillance are outdated, contradictory, and in some cases do not even exist. <br /> <br /> To address these shortcomings, there is currently a bipartisan bill, the Geolocation Privacy and Surveillance (GPS) Act, before Congress aimed at protecting privacy rights from police use of GPS tracking via cell phone. This bill would require law enforcement to obtain a warrant based on probable cause before accessing cell phone location information. These privacy protections are needed equally by all citizens, law-abiding and otherwise. </p> <p></p> <p><br /> <a href="http://www.collinsattorneys.com/index.html">Collins & Collins, P.C.</a><br /> <a href="http://www.collinsattorneys.com/lawyer-attorney-1448087.html">Albuquerque Attorneys</a> <br /> <br /> <a href="http://www.collinsattorneys.com/lawyer-attorney-1448101.html"><div style="text-align: center;"><em><strong>DISCLAIMER</strong></em></div></a></p><div class="feedflare"> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=2dZK_nE2hxo:UoABcqN6_jc:yIl2AUoC8zA"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=yIl2AUoC8zA" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=2dZK_nE2hxo:UoABcqN6_jc:V_sGLiPBpWU"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=2dZK_nE2hxo:UoABcqN6_jc:V_sGLiPBpWU" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=2dZK_nE2hxo:UoABcqN6_jc:F7zBnMyn0Lo"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=2dZK_nE2hxo:UoABcqN6_jc:F7zBnMyn0Lo" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=2dZK_nE2hxo:UoABcqN6_jc:qj6IDK7rITs"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=qj6IDK7rITs" border="0"></img></a> </div><img src="http://feeds.feedburner.com/~r/AlbuquerqueCriminalLawyerBlog/~4/2dZK_nE2hxo" height="1" width="1"/> http://feedproxy.google.com/~r/AlbuquerqueCriminalLawyerBlog/~3/2dZK_nE2hxo/cell-phone-gps-tracking-by-law.html http://www.albuquerquecriminallawyerblog.com/2012/04/cell-phone-gps-tracking-by-law.html Constitutional Rights Evidence Mon, 16 Apr 2012 11:41:09 -0700 http://www.albuquerquecriminallawyerblog.com/2012/04/cell-phone-gps-tracking-by-law.html <p>The U.S. criminal system has largely become a system of pleas. According to the Department of Justice, 98% of federal convictions and 94% of state convictions are the result of guilty pleas, with a large part of these arising from plea bargains between the prosecution and defendant. Consequently, the Supreme Court of the U.S. has extended the <a href="http://www.collinsattorneys.com/lawyer-attorney-1902712.html">Sixth Amendment right to counsel</a> to the plea bargain process. In a recent case, <a href="http://www.supremecourt.gov/opinions/11pdf/10-209.pdf">Lafler v. Cooper</a>, the Court addressed the right to counsel in the context of pleas that are rejected by a defendant on the mistaken advice of their attorney. <br /> <br /> The Defendant in <em>Lafler v. Cooper</em> was charged with assault with the intent to murder and three additional offenses. In exchange for a <a href="http://www.collinsattorneys.com/lawyer-attorney-1795941.html">guilty plea</a>, the prosecution offered to recommend a 51-to-85 month sentence for two of the charges and dismiss the other two. The defendant rejected the offer on the advice of his attorney that the State would not be able to establish his intent to murder the Victim because Defendant shot the Victim below the waist. The Defendant was subsequently found guilty and sentenced to a mandatory minimum of 185-to-360 months. <br /> <br /> The Sixth Amendment to the U.S. Constitution guarantees the accused in all criminal trials the effective assistance of counsel. The right to effective assistance of counsel applies to all "critical stages" in a criminal proceeding. Critical stages include arraignment, post indictment line-ups, post indictment interrogation, entering a plea of guilty, and the plea bargaining process.<br /> <br /> To analyze whether the ineffective assistance rises to a Sixth Amendment violation, courts must follow a two-part test set out in Strickland v. Washington. Under the Strickland test, a defendant must show that (1) counsel's advice fell below an objective standard of reasonableness, and (2) but for counsel's ineffective advice, the outcome of the case would have been different. <br /> <br /> Adapting the Strickland standard to cases in which an offer is rejected due to ineffective advice, the Court announced a new test to prove the second Strickland prong. In cases like this one, once the defendant has proved that counsel offered ineffective advice, a defendant must also prove that but for the advice there is a reasonable probability that (1) the plea offer would have been presented to the court, (2) that the court would have accepted the terms, and (3) that the sentence, conviction, or both would have been less severe under the offer's terms than under the actual judgment or sentence that resulted.<br /> <br /> Having established both parts of the Strickland test as modified in this case, the Court went on to address the type of remedy that should be available to a defendant. The Court stated that while the remedy "must neutralize the taint" of the Sixth Amendment violation, it must not give the defendant a bonus or waste the resources invested by the state in prosecuting the case. <br /> <br /> To this end, the Court announced that in cases like this, there are several remedies that a court may choose from depending on the particular facts. If the only difference between having accepted and rejected the plea involves sentencing, the court must have an evidentiary hearing where it is determined whether there is a reasonable probability that defendant would have accepted the plea offer. If the court finds the defendant would have taken the plea, it can decide whether to grant the terms of the plea, the sentencing at trial, or a different sentence. <br /> <br /> On the other hand, there may be other instances where this remedy would not be sufficient. In cases where the plea offer dismissed counts for which the defendant was later convicted at trial or where there are mandatory sentencing guidelines, the Court held that the remedy might require the prosecution to reoffer the plea. Once the plea is offered again, the court may choose to accept the plea and vacate the conviction, or leave the conviction as-is.<br /> <br /> As such, the outcome will depend on the circumstance of each case, and may in large part be dependent upon the particular trial judge. The dissent argued that the case would open a floodgate of challenges. This remains to be seen but rest assured the latitude left the judge in deciding what to do with the defective plea leaves open enormous room for further dispute.</p> <p></p> <p><br /> <a href="http://www.collinsattorneys.com/index.html">Collins & Collins, P.C.</a><br /> <a href="http://www.collinsattorneys.com/lawyer-attorney-1448087.html">Albuquerque Attorneys</a> <br /> <br /> <a href="http://www.collinsattorneys.com/lawyer-attorney-1448101.html"><div style="text-align: center;"><em><strong>DISCLAIMER</strong></em></div></a></p><div class="feedflare"> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=UOGmBzi9Sxc:4egB_JDJLIw:yIl2AUoC8zA"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=yIl2AUoC8zA" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=UOGmBzi9Sxc:4egB_JDJLIw:V_sGLiPBpWU"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=UOGmBzi9Sxc:4egB_JDJLIw:V_sGLiPBpWU" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=UOGmBzi9Sxc:4egB_JDJLIw:F7zBnMyn0Lo"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=UOGmBzi9Sxc:4egB_JDJLIw:F7zBnMyn0Lo" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=UOGmBzi9Sxc:4egB_JDJLIw:qj6IDK7rITs"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=qj6IDK7rITs" border="0"></img></a> </div><img src="http://feeds.feedburner.com/~r/AlbuquerqueCriminalLawyerBlog/~4/UOGmBzi9Sxc" height="1" width="1"/> http://feedproxy.google.com/~r/AlbuquerqueCriminalLawyerBlog/~3/UOGmBzi9Sxc/supreme-court-extends-sixth-am.html http://www.albuquerquecriminallawyerblog.com/2012/04/supreme-court-extends-sixth-am.html Constitutional Rights Criminal Pleas and Dispositions Criminal Procedure Tue, 10 Apr 2012 23:57:43 -0700 http://www.albuquerquecriminallawyerblog.com/2012/04/supreme-court-extends-sixth-am.html <p>Last month the <a href="http://www.supremecourt.gov/">United States Supreme Court</a> issued a ruling affecting <a href="http://www.collinsattorneys.com/lawyer-attorney-1805201.html"><em>Miranda</em> warnings</a> and when they apply to prisoners. In <a href="http://www.supremecourt.gov/opinions/11pdf/10-680.pdf"><em>Howes v. Fields</em></a>, the Court held that <em>Miranda</em> warnings are not always necessary when police officers interrogate prisoners about events that occurred outside the jail. In this landmark case, the Court seems to take a distinctly different approach to Miranda, its original philosophy, and the Court's own earlier case law.<br /> <br /> In <em>Howes v. Fields</em> a prisoner was taken aside and questioned about a prior offense without being advised of his <em>Miranda</em> rights. The defendant confessed after five to seven hours of questioning. He was then charged with the crime and his confession was used as evidence against him. The Defendant argued that the confession was inadmissible because it was obtained in violation of his <em>Miranda</em> rights. The Supreme Court disagreed. <br /> <br /> The <em>Miranda</em> warning originates from the 1966 Supreme Court case <em>Miranda v. Arizona</em>. <em>Miranda</em> warnings were put in place to counter-balance the inherently coercive and intimidating setting of a custodial interrogation. In <em>Miranda</em>, the Supreme Court held that it was a violation of a <em>person's 5th Amendment right against self-incrimination to be interrogated while in police custody without being warned of the right to remain silent</em>. <br /> <br /> Under <em>Miranda</em>, if police fail to inform a suspect of their <em>Miranda</em> rights, any confession or incriminating information stemming from a custodial interrogation is inadmissible in court. <em>Miranda</em> warnings are only required when a suspect is being (1) interrogated by a known state agent (2) while in custody which would seem to clearly include interrogation of prisoners.<br /> <br /> While it may seem that being incarcerated is the ultimate form of custody, the Supreme Court in <em>Howes</em> held that imprisonment alone does not rise to the level of custody for <em>Miranda</em> purposes. The Court reasoned that custody, when it comes to prisoners, does not depend on whether the individual is incarcerated, but whether there exists the "coercive pressure that <em>Miranda</em> was designed to guard against." <br /> <br /> The Court did not find that "coercive pressure" in this case. The opinion argued that the questioning of a prisoner did not create the same distress that an initial arrest would, and by consequence, would not have the same coercive pressure on the individual. <br /> <br /> Moreover, the Court explained that a recent arrestee and a prisoner have different expectations during an interrogation. While the arrestee may be prompted to answer questions in the hopes that he or she will be allowed to return home quickly, the prisoner has no similar expectations and is therefore not pressured to speak. <br /> <br /> Finally, the Court distinguished a prison interrogation from an initial arrest interrogation in that the prisoner knows that his interrogators have no power to grant parole or affect the duration of his sentence. In prison situations, it is unlikely that the prisoner will be motivated to say something to please the interrogators, and therefore the Court concluded that the coercive atmosphere that <em>Miranda</em> was set in place to guard against is absent. <br /> <br /> In sum, even though the Court seemed to find support for its ruling in <em>Howes</em> among its earlier cases, the truth is that this case marks a dramatic reduction of <em>Miranda</em> protections. By changing the meaning of custody, the Court has opened the door for potentially abusive interrogation of prisoners without the even nominal cautions afforded by <em>Miranda</em>.</p> <p></p> <p><br /> <a href="http://www.collinsattorneys.com/index.html">Collins & Collins, P.C.</a><br /> <a href="http://www.collinsattorneys.com/lawyer-attorney-1448087.html">Albuquerque Attorneys</a> <br /> <br /> <a href="http://www.collinsattorneys.com/lawyer-attorney-1448101.html"><div style="text-align: center;"><em><strong>DISCLAIMER</strong></em></div></a></p><div class="feedflare"> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=WUQ63ZbJT0c:YUe1XH37Oik:yIl2AUoC8zA"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=yIl2AUoC8zA" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=WUQ63ZbJT0c:YUe1XH37Oik:V_sGLiPBpWU"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=WUQ63ZbJT0c:YUe1XH37Oik:V_sGLiPBpWU" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=WUQ63ZbJT0c:YUe1XH37Oik:F7zBnMyn0Lo"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=WUQ63ZbJT0c:YUe1XH37Oik:F7zBnMyn0Lo" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=WUQ63ZbJT0c:YUe1XH37Oik:qj6IDK7rITs"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=qj6IDK7rITs" border="0"></img></a> </div><img src="http://feeds.feedburner.com/~r/AlbuquerqueCriminalLawyerBlog/~4/WUQ63ZbJT0c" height="1" width="1"/> http://feedproxy.google.com/~r/AlbuquerqueCriminalLawyerBlog/~3/WUQ63ZbJT0c/being-in-jail-may-not-mean-bei.html http://www.albuquerquecriminallawyerblog.com/2012/04/being-in-jail-may-not-mean-bei.html Constitutional Rights Thu, 05 Apr 2012 12:01:35 -0700 http://www.albuquerquecriminallawyerblog.com/2012/04/being-in-jail-may-not-mean-bei.html <p>In New Mexico there are time limits that prosecutors and courts must adhere to in order to ensure due process. One of the limits involves timely preliminary hearings. These time limits are very important to the rights of accused persons. They are taken seriously by the courts of New Mexico and often the form the basis for dismissal. <br /> <br /> The time limits come up in a variety of ways from the <a href="http://www.collinsattorneys.com/lawyer-attorney-1490172.html">speedy trial rule</a> to discovery violations to statutes of limitations. A lesser known violation of time limits came up recently in the in State v. Leticia T.. In that case, the <a href="http://coa.nmcourts.gov/">New Mexico Court of Appeals</a> ruled on what type of remedy is available to a juvenile who did not receive a timely preliminary hearing when the State was seeking an adult sentence. <br /> <br /> The underlying case in <a href="http://www.collinsattorneys.com/docs/state_v._leticia_t.__nmca_2012__juvenile_preliminary_hearing_time_limits.pdf">State v. Leticia T.</a> involved a sixteen-year-old child charged with assault and battery of a police officer, for which the State sought an adult sentence. The child was taken into custody and her preliminary hearing was held twenty-four days after the prosecution filed a notice to seek an adult sentence. <br /> <br /> Under Rule 10-213 (B) of the New Mexico Children's Court Rules, a preliminary hearing must be conducted within fifteen days after a notice to seek an adult sentence, unless the case is presented to a grand jury or the child waives her right to a preliminary hearing or grand jury. Under Section 32A-2-20 (A) of the New Mexico Children's Code, a preliminary hearing must be conducted within ten working days of the State's notice to seek an adult sentence. <br /> <br /> In the present case, the Court did not go into the question of whether the Defendant was entitled to a preliminary hearing within ten or fifteen days of the filing of notice to seek adult charges because both were violated. Instead, the Court went on to analyze what remedy is appropriate when either statute is violated, since both are "worded in mandatory terms." <br /> <br /> According to the Court of Appeals, dismissal of the charges is not the proper remedy for a violation of the mandatory time limits for a preliminary hearing. Under Children's Court Rule 10-101 (A)(2)(b), when there is a notice to seek adult charges and the child is a "youthful offender," the Rules of Criminal Procedure govern all proceedings in Children's Court, unless specifically provided in the Children's Court Rules. Children's Court Rule 10-144 specifically provides that error by the court or any party, including violation of time limits, is not ground for dismissal unless this is inconsistent with the interests of justice. <br /> <br /> In this case, the Court found that despite the violation of Rule 10-213 (B)'s preliminary hearing requirement, there were no grounds for dismissal of the charges. Similarly, the Court found that dismissal was not the proper remedy for a violation of Section 32A-2-20 (A) of the New Mexico Children's Code. <br /> <br /> To warrant dismissal under this Section, a defendant child must show prejudice. In other words, the Defendant must show that the delay in their preliminary hearing past ten days of the notice was not due to scheduling conflicts and other administrative reasons, but because there was prejudice against her either on the part of the court or state. The Court did not find such prejudice in this case and therefore denied the Defendant's motion to dismiss.<br /> <br /> The Court itself understood that its ruling in this case represents the erosion of the protections given to juveniles under the New Mexico Children's Court Rules and Children's Code. However, the Court stated that it had no choice because only the <a href="http://nmsupremecourt.nmcourts.gov/">New Mexico Supreme Court</a> can write or rewrite rules of court procedure. <br /> <br /> The Court in this case echoed the New Mexico Supreme Court in calling on the Children's Rules Committee to revisit the time limits for youthful offenders. As the law in New Mexico stands today, even though the rules are written in mandatory language, there is effectively no real remedy for the youthful offenders when they are not given a preliminary hearing in a timely manner. <br /> <br /> The time limits in criminal prosecutions often rely on the discretion of the court and a determination of prejudice to the defendant. These time limits are important and should and typically are challenged by <a href="http://www.collinsattorneys.com/lawyer-attorney-1448230.html">criminal defense attorneys</a>. Though the outcome here suggests otherwise, time limits are often the first and best line of defense.</p> <p></p> <p><a href="http://www.collinsattorneys.com/index.html">Collins & Collins, P.C.</a><br /> <a href="http://www.collinsattorneys.com/lawyer-attorney-1448087.html">Albuquerque Attorneys</a> <br /> <br /> <a href="http://www.collinsattorneys.com/lawyer-attorney-1448101.html"><div style="text-align: center;"><em><strong>DISCLAIMER</strong></em></div></a></p><div class="feedflare"> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=FkRcUcTtRso:Dc9lA7GRkD4:yIl2AUoC8zA"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=yIl2AUoC8zA" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=FkRcUcTtRso:Dc9lA7GRkD4:V_sGLiPBpWU"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=FkRcUcTtRso:Dc9lA7GRkD4:V_sGLiPBpWU" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=FkRcUcTtRso:Dc9lA7GRkD4:F7zBnMyn0Lo"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=FkRcUcTtRso:Dc9lA7GRkD4:F7zBnMyn0Lo" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=FkRcUcTtRso:Dc9lA7GRkD4:qj6IDK7rITs"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=qj6IDK7rITs" border="0"></img></a> </div><img src="http://feeds.feedburner.com/~r/AlbuquerqueCriminalLawyerBlog/~4/FkRcUcTtRso" height="1" width="1"/> http://feedproxy.google.com/~r/AlbuquerqueCriminalLawyerBlog/~3/FkRcUcTtRso/timely-preliminary-hearings-an.html http://www.albuquerquecriminallawyerblog.com/2012/04/timely-preliminary-hearings-an.html Constitutional Rights Criminal Procedure Juvenile Criminal Charges Tue, 03 Apr 2012 22:00:53 -0700 http://www.albuquerquecriminallawyerblog.com/2012/04/timely-preliminary-hearings-an.html <p>Most people are familiar with the first lines of the <a href="http://www.collinsattorneys.com/lawyer-attorney-1805201.html">Miranda warning</a>, "you have the right to remain silent. Anything you say or do can and will be held against you in a court of law." However, not everyone is aware of the specific constitutional rights embodied in the warning.</p> <p>The Miranda warning originates from the 1966 Supreme Court case <em>Miranda v. Arizona</em>. In <em>Miranda</em>, the <a href="http://www.supremecourt.gov/">United States Supreme Court</a> held that it was a violation of a person's <a href="- http://www.collinsattorneys.com/docs/5th_amendment.pdf">5th Amendment right </a>against self-incrimination to be interrogated while in police custody without being warned of the right not to speak. If police fail to inform a suspect of their Miranda right to remain silent and interrogate him while in custody, any confession or incriminating information stemming from the interrogation will not be admissible in court. </p> <p>Miranda warnings are meant to counter-balance the inherently coercive and intimidating setting of a custodial interrogation. However, Miranda warnings are not always required. A suspect must only be informed of their 5th Amendment right if he or she is (1) interrogated by a known state agent (2) while in custody. </p> <p>First, Miranda protections apply only to testimonial evidence. Testimonial evidence includes verbal, written or other non-verbal communication intended to convey thoughts or offered as proof of the truth of what is being stated. For example, if a person nods her head in response to a question, this is non-verbal testimonial evidence and therefore protected by Miranda. However, physical or real evidence is not protected by the 5th Amendment clause against self-incrimination. Physical evidence includes hair, skin, DNA, and handwriting samples. It also includes fingerprints and voice exemplars. </p> <p>Second, the suspect must actually know that the person conducting the interrogation is a state agent for Miranda protections to apply. This requirement is usually easy to meet when an individual is questioned by a known police officer. However, there is no Miranda protection for statements gathered by a private person's interrogation, regardless of whether the suspect is in custody or not. Courts have also held that Miranda excludes interrogations by police informants or undercover police officers. The rationale behind this is that if the suspect does not know the other person is a state agent, there is no coercion. </p> <p>It is also important to define both "interrogation" and "custody" for purposes of Miranda warnings. Under federal and New Mexico case law, "interrogation" for 5th Amendment purposes has a precise definition. For a situation to entail "interrogation" it must have been express questioning. The Supreme Court defined interrogation as "any words or actions... that the police should know are reasonably likely to elicit an incriminating response." For example, a volunteered or spontaneous statement is not the product of interrogation and will be admissible in court even if the individual was not provided with Miranda warnings. </p> <p>Finally, "custody" also has a specific meaning under Miranda case law. Custody, for 5th Amendment purposes, means that the person was formally placed under arrest or that his or her freedom of movement was so restrained that it is correlated to formal arrest. A person does not have to be physically restrained by an officer; the words, "you are under arrest" are enough to satisfy this requirement. </p> <p>When there is no formal arrest courts must analyze whether the person reasonably believed he or she was free to leave and terminate the interview. According to federal and New Mexico law, however, brief traffic stops (Terry stops) or short questioning by a police officer on the street does not rise to the level of "full custodial arrest" under Miranda. Further, a person is not considered to be in custody when he voluntarily goes to a police station for questioning, especially if the officer warns that he is not under arrest and free to leave at any time. </p> <p>Once interrogation has begun, a suspect is also entitled to retain an attorney or have one appointed to them if they are indigent. Once a suspect invokes their right to an attorney, all interrogation from police must end at once until the attorney has been contacted. <br /> <br /> There is an important public safety exception to Miranda warnings. Statements obtained while in a situation that involved heightened public danger are admissible in the absence of Miranda warnings. However, this is a limited exception that only applies in situations where (1) the officer reasonably believed that the information was necessary to protect life and property form a substantial threat and (2) the questioning was restricted to what was reasonably necessary to acquire the information. </p> <p>Each case is unique and likewise requires individual analysis. If you are facing a situation where you believe your Miranda rights have been violated, you should discuss the facts and circumstances with an <a href="http://www.collinsattorneys.com/lawyer-attorney-1448230.html">experienced criminal defense attorney</a>. </p> <p><a href="http://www.collinsattorneys.com/index.html">Collins & Collins, P.C.</a><br /> <a href="http://www.collinsattorneys.com/lawyer-attorney-1448087.html">Albuquerque Attorneys</a> </p> <p><a href="http://www.collinsattorneys.com/lawyer-attorney-1448101.html"><div style="text-align: center;"><em><strong>DISCLAIMER</strong></em></div></a><br /> </p><div class="feedflare"> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=3a3AACoFNvc:ryccvg_YjeY:yIl2AUoC8zA"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=yIl2AUoC8zA" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=3a3AACoFNvc:ryccvg_YjeY:V_sGLiPBpWU"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=3a3AACoFNvc:ryccvg_YjeY:V_sGLiPBpWU" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=3a3AACoFNvc:ryccvg_YjeY:F7zBnMyn0Lo"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=3a3AACoFNvc:ryccvg_YjeY:F7zBnMyn0Lo" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=3a3AACoFNvc:ryccvg_YjeY:qj6IDK7rITs"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=qj6IDK7rITs" border="0"></img></a> </div><img src="http://feeds.feedburner.com/~r/AlbuquerqueCriminalLawyerBlog/~4/3a3AACoFNvc" height="1" width="1"/> http://feedproxy.google.com/~r/AlbuquerqueCriminalLawyerBlog/~3/3a3AACoFNvc/what-does-you-have-the-right-t.html http://www.albuquerquecriminallawyerblog.com/2012/03/what-does-you-have-the-right-t.html Constitutional Rights Fri, 23 Mar 2012 16:07:48 -0700 http://www.albuquerquecriminallawyerblog.com/2012/03/what-does-you-have-the-right-t.html <p>Thanks to Hollywood and TV crime dramas, almost anyone can recite the standard <a href="http://www.collinsattorneys.com/lawyer-attorney-1805201.html">Miranda warning</a>, "you have the right to remain silent..." However, fewer people understand the meaning of this constitutional right and when a defendant is entitled to its protection. <br /> <br /> In the 2010 <a href="http://nmsupremecourt.nmcourts.gov/">New Mexico Supreme Court</a> case of State v. Wilson, the Court recently ruled on the admissibility of criminal confessions in cases where the defendant was not given Miranda warnings and his or her judgment may have been impaired.<br /> <br /> In <a href="http://www.nmcompcomm.us/nmcases/NMSC/2011/11sc-001.pdf">Stave v. Wilson</a>, the Defendant was convicted of suffocating a two-year old foster child that lived in his home. The Defendant confessed to having killed the child in a second interview conducted at the police department several days after the incident. A day before the second interview, the Defendant voluntarily checked himself into a mental facility where he was prescribed the antipsychotic Seraquel upon checking out the next day. <br /> <br /> Before the interview began, the interrogating detective advised Defendant that he was free to leave or terminate the interview whenever he wanted. He also advised the Defendant that he was not under arrest at this time and had no obligation to speak. Defendant asserted that he wanted to make a statement. During the videotaped interview, Defendant confessed to having smothered the victim with a blanket, reenacted the act with a doll, and wrote a handwritten confession and letter apologizing to the child's biological parents. <br /> <br /> The Court affirmed Defendant's conviction, stating that his Fifth and Fourteenth Amendment rights were not violated by the admission of his confession into evidence at trial, despite the absence of Miranda warnings or the possibility that his judgment may have been impaired. <br /> <br /> Miranda warnings are a vital part of due process and are encapsulated in the Fifth and Fourteenth Amendments of the U.S. Constitution. If an individual is interrogated while in custody, due process dictates that any statements made during the interrogation are only admissible in court if the individual is first given Miranda warnings. <br /> <br /> However, Miranda warnings are not always necessary for a confession to be admissible at trial under due process. According to New Mexico case law, Miranda warnings are required only when "a person is (1) interrogated while (2) in custody." In the current case, the New Mexico Supreme Court defined "in custody" for purposes of Miranda warnings. <br /> <br /> Following previous decisions, the Court defined "custody" as an objective determination where a court must decide whether a reasonable person being interviewed by police would believe that they are free to leave and terminate the interview. The factors a court should take into account when analyzing whether a person understood their situation include the length of the interrogation, where it took place, the nature of the evidence defendant is confronted with, etc. Applying those factors to the facts of the case, the Court found that even though the interview occurred in an interrogation room at a police station, a reasonable person in Defendant's position would have understood that he was free to leave at any time. <br /> <br /> The Court also addressed Defendant's contention that his confession was not voluntary because he was in an impaired mental state. Under federal and New Mexico law, a confession must be voluntary to be admissible against a defendant. Absent "official coercion," a defendant's impaired mental state is not sufficient to make a confession involuntary. <br /> <br /> Applying this standard to the case, the Court found that despite the interrogating officer's general knowledge that Defendant had been admitted into a mental facility, the Defendant was acting normal and all facts pointed to the general opinion that Defendant's mental state was improving. The Court found no element of coercion on the interrogator's part, and held that even if Defendant's judgment were impaired, the statement was not involuntary because the interrogator was not reasonably aware of it.<br /> <br /> Though the outcome of the case under the facts is not partiucalrly problematic. Some of the court's language may prove problematic for defendants in the future. In clarifying the second prong required to trigger Miranda warnings, the New Mexico Supreme Court makes a defendant's individual, subjective belief that he is in custody irrelevant if it does not match up with the "objective" standard. <br /> <br /> This position fails to take into account that most people lack sufficient knowledge of the law to be held to an objective standard. After all this will turn on whether an individual knows enough about the legal system to recognize that he or she is free to leave. Even though a reasonable person that is aware of their rights may know that they are free to leave, a reasonable person who is unaware of this right may not. <br /> <br /> Perhaps more problematic for defendants, this ruling makes a confession voluntary even if the individual confessing is impaired so long as the interrogator is reasonably unaware of this fact. And how is "reasonable awareness" to be measured?<br /> <br /> When questioned by police, keep in mind you have the right to counsel. Exercise this right. Ask to speak with a <a href="http://www.collinsattorneys.com/lawyer-attorney-1448230.html">criminal defense attorney</a>. Then, stop talking!</p> <p></p> <p><a href="http://www.collinsattorneys.com/index.html">Collins & Collins, P.C.</a><br /> <a href="http://www.collinsattorneys.com/lawyer-attorney-1448087.html">Albuquerque Attorneys</a> <br /> <br /> <a href="http://www.collinsattorneys.com/lawyer-attorney-1448101.html"><div style="text-align: center;"><em><strong>DISCLAIMER</strong></em></div></a></p><div class="feedflare"> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=QkC-p5vuu3s:LgSQA1mpJXc:yIl2AUoC8zA"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=yIl2AUoC8zA" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=QkC-p5vuu3s:LgSQA1mpJXc:V_sGLiPBpWU"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=QkC-p5vuu3s:LgSQA1mpJXc:V_sGLiPBpWU" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=QkC-p5vuu3s:LgSQA1mpJXc:F7zBnMyn0Lo"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=QkC-p5vuu3s:LgSQA1mpJXc:F7zBnMyn0Lo" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=QkC-p5vuu3s:LgSQA1mpJXc:qj6IDK7rITs"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=qj6IDK7rITs" border="0"></img></a> </div><img src="http://feeds.feedburner.com/~r/AlbuquerqueCriminalLawyerBlog/~4/QkC-p5vuu3s" height="1" width="1"/> http://feedproxy.google.com/~r/AlbuquerqueCriminalLawyerBlog/~3/QkC-p5vuu3s/criminal-confessions-and-miran.html http://www.albuquerquecriminallawyerblog.com/2012/03/criminal-confessions-and-miran.html Constitutional Rights due process right to attorney right to counsel Mon, 12 Mar 2012 13:09:27 -0700 http://www.albuquerquecriminallawyerblog.com/2012/03/criminal-confessions-and-miran.html <p>The<a href="http://www.collinsattorneys.com/lawyer-attorney-1590219.html"> juvenile criminal process</a> in New Mexico differs in several ways from the adult process. In some ways juveniles are granted more favorable rights than adults, including such procedural an due process protections as the <a href="http://www.collinsattorneys.com/lawyer-attorney-1490172.html">guarantee of a speedy trial</a>. In <em>State v. Castro</em>, the New Mexico Court of Appeals recently discussed the effect of a no bill on dismissal and on speedy trial time limits. <br /> <br /> A no bill is a determination by a <a href="http://www.collinsattorneys.com/lawyer-attorney-1623583.html">grand jury</a> that there is not sufficient evidence to return an indictment against an individual. In some courts around the state, a preliminary hearing is used instead of the grand jury process. The juvenile process typically more closely follows the preliminary hearing process in adult felony proceedings. However, in very serious felony cases, the juvenile may be charged as a youthful offender which in some counties will result in a grand jury. Other smaller counties will generally stick with the preliminary hearing process. <br /> <br /> In New Mexico juvenile court, a delinquency petition sets forth the charges against the child in much the same way that a criminal complaint operates in adult court. Once the criminal process begins against a child in custody, the Children's Court Rules sets a 30-day time limit within which an adjudicatory hearing must begin. An adjudicatory hearing is one where a judge decides whether there is probably cause to believe the charges against the child have some factual basis, like a preliminary hearing in adult court. <br /> <br /> Under the Children's Court Rules, the time for the adjudicatory hearing may be extended by no more than 60 days. If the time limits are not complied with, the court may dismiss the case with prejudice. When a case is dismissed with prejudice, the defendant cannot be recharged.<br /> <br /> In <a href="http://www.collinsattorneys.com/docs/state_v._castro__nmca_2012__juvenile_court_no_bill_dismissal_with_prejudice.pdf">State v. Castro</a>, the State filed a delinquency petition against the defendant child chargin him as a youthful offender. The defendant child was served while in custody, triggering the 30-day time limit to commence an adjudicatory hearing. The State presented the grand jury with a list of all the delinquent acts contained in the delinquency petition. The grand jury, however, returned a no bill, meaning that it did not find probable cause to charge the Defendant. <br /> <br /> The court did not hold an adjudicatory hearing within the 30-day limit, but instead held a hearing to entertain a motion from the State requesting an extension and a motion from the Defendant to deny the extension. At the hearing, the court dismissed the delinquency petition with prejudice for failure to comply with the 30-day time limit. <br /> <br /> On appeal, the New Mexico Court of Appeals found that the return of a no-bill from the grand jury operated as a dismissal of all the charges against the defendant without prejudice, meaning that the State is free to re-charge the defendant with the same crimes. Since the return of the no-bill operated as a dismissal, the Court continued, there were no pending charges against the Defendant at the time of the motion hearing. Therefore, the 30-day time limit was not applicable, and the lower court lacked the authority to dismiss the case with prejudice.<br /> <br /> What the holding in this case comes down to is that when a grand jury returns a no bill, even though the case is dismissed and the charges are no longer pending against the Defendant, the State is free to re-file charges against the Defendant for the same offense once it has gathered more evidence. <br /> <br /> The time limits were put in place so that once the State begins the criminal process against an individual, the accused is guaranteed a speedy trial. This ensures that the State will gather necessary evidence before it files charges and that citizens will not be unnecessarily harassed. However, it seems that this ruling effectively stops the clock in favor of the State, allowing it to charge an individual again if it did not achieve its goals the first time around.<br /> <br /> As one might gather from reading the above, this is a complex process and one would be wise to seek the counsel of a <a href="http://www.collinsattorneys.com/lawyer-attorney-1448230.html">criminal defense attorney</a> from the outset. If you cannot afford a private attorney, there many very capable public offenders that are there to assist you. </p> <p><a href="http://www.collinsattorneys.com/index.html">Collins & Collins, P.C.</a><br /> <a href="http://www.collinsattorneys.com/lawyer-attorney-1448087.html">Albuquerque Attorneys</a> </p> <p><a href="http://www.collinsattorneys.com/lawyer-attorney-1448101.html"><div style="text-align: center;"><em><strong>DISCLAIMER</strong></em></div></a></p><div class="feedflare"> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=CqGXCvwpUHc:hEY5iKEVL2s:yIl2AUoC8zA"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=yIl2AUoC8zA" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=CqGXCvwpUHc:hEY5iKEVL2s:V_sGLiPBpWU"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=CqGXCvwpUHc:hEY5iKEVL2s:V_sGLiPBpWU" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=CqGXCvwpUHc:hEY5iKEVL2s:F7zBnMyn0Lo"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=CqGXCvwpUHc:hEY5iKEVL2s:F7zBnMyn0Lo" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=CqGXCvwpUHc:hEY5iKEVL2s:qj6IDK7rITs"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=qj6IDK7rITs" border="0"></img></a> </div><img src="http://feeds.feedburner.com/~r/AlbuquerqueCriminalLawyerBlog/~4/CqGXCvwpUHc" height="1" width="1"/> http://feedproxy.google.com/~r/AlbuquerqueCriminalLawyerBlog/~3/CqGXCvwpUHc/a-no-bill-eliminates-time-limi.html http://www.albuquerquecriminallawyerblog.com/2012/03/a-no-bill-eliminates-time-limi.html Constitutional Rights Criminal Procedure Juvenile Criminal Charges Tue, 06 Mar 2012 15:17:42 -0700 http://www.albuquerquecriminallawyerblog.com/2012/03/a-no-bill-eliminates-time-limi.html <p>Earlier this month, the <a href="http://coa.nmcourts.gov/">New Mexico Court of Appeals</a> clarified several issues regarding the <a href="http://www.collinsattorneys.com/lawyer-attorney-1804066.html">6th Amendment confrontation clause</a> in <em>State v. Patrice Chung</em>. In New Mexico, a large number of criminal cases are dismissed for violations of the 6th Amendment confrontation clause. </p> <p>The 6th Amendment of the US Constitution reads, "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." The specific boundaries of this protection are continually being defined and clarified by the United States Supreme Court as well as New Mexico state courts. </p> <p>In <a href="http://www.collinsattorneys.com/docs/state_v._patrice_chung__nmca_2012__confrontation_clause_-_sld_testing.pdf">State v. Chung</a>, the Defendant was charged with distribution of marijuana. Before trial, the State filed a motion to allow an analyst from the New Mexico Scientific Laboratories Division (SLD) to testify via video conference that the substance was indeed marijuana, an element that was necessary to the charge. </p> <p>The Defendant opposed the motion arguing that testimony through video conferencing violated his 6th Amendment right to confront a witness. Even though the court's own rules and the Rules of Criminal Procedure afforded the Defendant 15 days to respond to the motion, the trial court granted the State's motion the day after it was filed, without giving the Defendant a chance to respond. </p> <p>At trial, the witness testified via video conference over the Defendant's objection and motion to strike the testimony. The objection and motion were denied two days after the trial. The trial court gave two reasons for the denial of both the objections and motion. According to the court, the Defendant's right to confrontation was not violated because (1) the analyst's testimony was observed by the jury as if the analyst would have personally testified at trial; and (2) the analyst would have had to travel six hours to attend the trial, and given the budget crisis currently facing the state, video conferencing saved money.</p> <p>The New Mexico Court of Appeals disagreed and reversed the conviction on the grounds that the Defendant's 6th Amendment right to confrontation was violated. In reversing the Court of Appeals referred to a previous case--<em>State v. Almanza</em>. In that decision the New Mexico Court of Appeals did not allow a chemist from the New Mexico State Crime lab to testify over the telephone without a compelling need or reason that the chemist could not testify at trial. </p> <p>In <em>Chung</em>, the State argued that testimony through video conferencing did not violate the confrontation clause, because unlike telephonic testimony, video conference allowed everyone in the court room to observe the witness while testifying, as well as allowing the witness to observe the Defendant and counsel. </p> <p>The Court of Appeals disagreed. First of all, in a hearing conducted after the analyst from SLD testified at the trial, the analyst affirmed that during his testimony he was not able to see the Defendant, judge, or jury, and only saw defense counsel at certain times, which was contrary to the depiction given by the State in its argument to allow the testimony. The Court of Appeals reinforced the idea that every element of face-to-face confrontation is important to the right to confront witnesses, including the effect that seeing the Defendant, defense counsel, judge, and jury may have on a witness. </p> <p>Second, the Court discussed the possible exceptions to face-to-face confrontation. Relying on a previous Supreme Court case discussed in <em>Almanza</em>, the Court of Appeals emphasized that that exceptions to face-to-face confrontation should be "narrowly tailored" and "necessary to further an important public policy." The Court found that avoiding a long trip, trial scheduling problems, and inconvenience to the witness are simply not sufficient to justify an exception to the confrontation clause on the basis of a public policy need. </p> <p>It seems that in the age of Skype and Facebook, there is still no replacement for face time when it comes to the 6th Amendment. </p> <p><a href="http://www.collinsattorneys.com/index.html">Collins & Collins, P.C.</a><br /> <a href="http://www.collinsattorneys.com/lawyer-attorney-1448087.html">Albuquerque Attorneys</a> </p> <p><a href="http://www.collinsattorneys.com/lawyer-attorney-1448101.html"><div style="text-align: center;"><em><strong>DISCLAIMER</strong></em></div></a></p><div class="feedflare"> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=rmv1Skcwkmo:WVrJ09ryRo0:yIl2AUoC8zA"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=yIl2AUoC8zA" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=rmv1Skcwkmo:WVrJ09ryRo0:V_sGLiPBpWU"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=rmv1Skcwkmo:WVrJ09ryRo0:V_sGLiPBpWU" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=rmv1Skcwkmo:WVrJ09ryRo0:F7zBnMyn0Lo"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=rmv1Skcwkmo:WVrJ09ryRo0:F7zBnMyn0Lo" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=rmv1Skcwkmo:WVrJ09ryRo0:qj6IDK7rITs"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=qj6IDK7rITs" border="0"></img></a> </div><img src="http://feeds.feedburner.com/~r/AlbuquerqueCriminalLawyerBlog/~4/rmv1Skcwkmo" height="1" width="1"/> http://feedproxy.google.com/~r/AlbuquerqueCriminalLawyerBlog/~3/rmv1Skcwkmo/n-an-increasingly-technical-ag.html http://www.albuquerquecriminallawyerblog.com/2012/02/n-an-increasingly-technical-ag.html Constitutional Rights drug and narcotics defense drug prosecution marijuana arrest Tue, 28 Feb 2012 07:41:19 -0700 http://www.albuquerquecriminallawyerblog.com/2012/02/n-an-increasingly-technical-ag.html <p>The recent <a href="http://coa.nmcourts.gov/">New Mexico Court of Appeals</a> decision in <em>State v. William Sharp</em> clarified the 2008 amendments to Rule 6-506 NMRA, also known as "the six-month rule," and the standard for its review by a district court. The "six month rule" is a shorthand term which generally refers to a criminal defendant's<a href="http://www.collinsattorneys.com/lawyer-attorney-1490172.html"> right to a speedy trial under the 6th Amendment </a>--within six months of his or her arraignment. This latest decision may have an impact on the number of cases dismissed on the basis of the six-moth rule. </p> <p>In <a href="http://www.collinsattorneys.com/docs/state_v._william_sharp__nmca_2012__speedy_trial_-_exceptional_circumstances.pdf">State v. Sharp</a>, the defendant was charged with <a href="http://www.collinsattorneys.com/lawyer-attorney-1594705.html">aggravated DWI </a>in March of 2009. The defendant waived his arraignment on March 23, 2009, which triggered the six-month rule. Under Rule 6-506, a defendant's trial must begin within 182 days of arraignment or waiver of arraignment. A court may extend the 182 days if it believes that there are circumstances beyond its control that prevent the trial from beginning within the allowed period. The extension may not exceed 60 days. Pursuant to the rule, defendant's trial had to begin by September 21, 2009. Trial was set for August 4, 2009. </p> <p>However, six weeks before his trial, the defendant filed a motion to suppress evidence, and four days before his trial was set to start, the defendant requested a continuance. The continuance was granted and the trial was rescheduled for October 2nd. On the day of the hearing on the defendant's motion to suppress, the defendant sought to dismiss the entire case based on violation of the six-month rule. In a written order, the magistrate court denied the motion to dismiss. The defendant was subsequently found guilty in a jury trial on October 28th. </p> <p>The defendant then appealed to the district court and filed another motion to dismiss based on violation of the six-month rule. The district court overruled the magistrate court and dismissed the case. In so doing it asserted that the State failed to file a written response to the motion to dismiss in magistrate court and that the magistrate court was required to state on record the extraordinary circumstances requiring an extension to the six-month rule. </p> <p>Last week, the New Mexico Court of Appeals reversed the decision of the district court, remanding the case for a determination of whether, under the particular facts, the violation of the six-month rule warranted a dismissal of the case. The appellate court reversed on two main grounds: (1) the district court's improper standard of review; (2) the district court's misconstruing of the amended six-month rule.</p> <p>The Court of Appeals began its discussion by explaining the difference between the old six-month rule and the amended six-month rule. While the old rule made it mandatory for courts to dismiss a case for non-compliance with the 182-day period, the current six-month rule gives courts discretion to decide whether to dismiss or impose other more suitable sanctions in accordance with the specific facts of each case.</p> <p>In addition, the appellate court found that the district court erred in the way that it reviewed the magistrate court decision. The district court based its decision on appellate review of the magistrate court's actions rather than de novo review of whether the particular facts of the case warranted dismissal for violation of the six-month rule. Appellate review gives deference to the lower court's decision, while in a de novo review the district court is in no way bound by the lower court proceedings. </p> <p>In New Mexico, speedy trial rule violations are perhaps the most common basis for dismissal, particularly at the misdemeanor level. Most of New Mexico's magistrate, municipal and metropolitan level courts are fairly strict in the enforcement of the 182 day (speedy trial) rule. It remains to be seen how this ruling will affect future court practices and how this will impact the rights of criminal defendants in New Mexico. Arguably, it should not because typically there will be no extraordinary circumstances present to justify a violation of the U.S. Constitution. </p> <p><a href="http://www.collinsattorneys.com/index.html">Collins & Collins, P.C.</a><br /> <a href="http://www.collinsattorneys.com/lawyer-attorney-1448087.html">Albuquerque Attorneys</a> </p> <p><a href="http://www.collinsattorneys.com/lawyer-attorney-1448101.html"><div style="text-align: center;"><em><strong>DISCLAIMER</strong></em></div></a><br /> </p><div class="feedflare"> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=XyjSSh29DwM:S07Mft0M_9g:yIl2AUoC8zA"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=yIl2AUoC8zA" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=XyjSSh29DwM:S07Mft0M_9g:V_sGLiPBpWU"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=XyjSSh29DwM:S07Mft0M_9g:V_sGLiPBpWU" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=XyjSSh29DwM:S07Mft0M_9g:F7zBnMyn0Lo"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=XyjSSh29DwM:S07Mft0M_9g:F7zBnMyn0Lo" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=XyjSSh29DwM:S07Mft0M_9g:qj6IDK7rITs"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=qj6IDK7rITs" border="0"></img></a> </div><img src="http://feeds.feedburner.com/~r/AlbuquerqueCriminalLawyerBlog/~4/XyjSSh29DwM" height="1" width="1"/> http://feedproxy.google.com/~r/AlbuquerqueCriminalLawyerBlog/~3/XyjSSh29DwM/six-month-rule-speedy-trial-re.html http://www.albuquerquecriminallawyerblog.com/2012/02/six-month-rule-speedy-trial-re.html Constitutional Rights DWI/DUI Misdemeanor Thu, 23 Feb 2012 16:10:53 -0700 http://www.albuquerquecriminallawyerblog.com/2012/02/six-month-rule-speedy-trial-re.html <p>A recent case from the <a href="http://coa.nmcourts.gov/">New Mexico Court of Appeals</a> points out the intersection of contract law and <a href="http://www.collinsattorneys.com/lawyer-attorney-1448138.html">criminal law</a>. Specifically, the New Mexico Court of Appeals held that criminal plea agreements are enforceable just as other contracts. In so doing, the Court also set forth some unique principles that apply to plea agreements that in most cases would not hold in a standard contract dispute. </p> <p>The facts of <a href="http://www.collinsattorneys.com/docs/state_v._gomez_enforcing_plea_agreement_specific_performance_of_contract.pdf">State v. Gomez</a> are interesting in their own right but need not be discussed in great depth here. In a nutshell, the defendant entered into a series of 3 plea agreements. Under the agreements, it was agreed by the State that he would be exposed to a maximum of 9 years on the 3 pleas agreements that were to run concurrently. The district court judge misconstrued the pleas to allow up to 21 years in prison. Based upon the misconstruction of the plea and a violation of probation, the court sentenced the defendant to 21 years, 16 years of which were suspended, for a total of 5 years of incarceration. </p> <p>The defendant appealed and the Court of Appeals reversed the sentence sending it back to district court for sentencing consistent with the written plea agreements. In doing so, the Court made some interesting findings regarding the application of contract law to plea agreements. </p> <p>The court began by recognizing that a plea agreement is a form of contract and should be treated as such by the court. The law of contract suggests that ambiguities in language should be construed against the draftsman. In case of criminal plea agreements, ambiguity according to the Court of Appeals should be construed against the State and in favor of the defendant. In so doing, the Court must determine the reasonable understanding of the defendant as to the terms of the plea.</p> <p>The Court set forth exceptions to this rule that would not otherwise apply to contracts. The Court stated that if the plea is ambiguous, the district court judge may resolve ambiguities on the record. With general contract law, agreements or understandings outside the contract itself are typically not admissible to change the terms of the written contract. With criminal plea agreements, unlike the typical contract dispute, the court record if any serves to amend the terms of the plea. </p> <p>This issue will be most interesting in magistrate and municipal court proceedings throughout New Mexico that are non-record cases, meaning that they are not recorded. This will pose some interesting issues in case of misconstruction of pleas in these non-record courts. </p> <p>Having said all this regarding construction and interpretation of plea agreements in the face of ambiguous terms, the Court of Appeals stated that there was no such ambiguity present in the plea agreements at hand. The court found that the plea agreements were clear and that the sentencing judge had done nothing, though he had full authority to do so, to amend the plea agreements on the record.</p> <p>Finally, because the Court found that the plea agreements were unambiguous and that the plea agreements would stand as written, the defendant was entitled to specific performance of the agreements. Again, specific enforcement is drawn from the law of contracts which allows the non-breaching party to enforce the agreements as written. </p> <p>It was found that the defendant did not wish to withdraw his plea which he might have done in case the district court had refused to accept the plea at the outset. Instead, the defendant chose to enforce the pleas as written through specific performance. As such, the Court of Appeals returned the case to the district court for sentencing in line of the written agreements. </p> <p><a href="http://www.collinsattorneys.com/index.html">Collins & Collins, P.C.</a><br /> <a href="http://www.collinsattorneys.com/lawyer-attorney-1448087.html">Albuquerque Attorneys</a> </p> <p><a href="http://www.collinsattorneys.com/lawyer-attorney-1448101.html"><div style="text-align: center;"><em><strong>DISCLAIMER</strong></em></div></a></p><div class="feedflare"> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=GXHvaUGELH8:lkI-xC0U9Yw:yIl2AUoC8zA"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=yIl2AUoC8zA" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=GXHvaUGELH8:lkI-xC0U9Yw:V_sGLiPBpWU"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=GXHvaUGELH8:lkI-xC0U9Yw:V_sGLiPBpWU" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=GXHvaUGELH8:lkI-xC0U9Yw:F7zBnMyn0Lo"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=GXHvaUGELH8:lkI-xC0U9Yw:F7zBnMyn0Lo" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=GXHvaUGELH8:lkI-xC0U9Yw:qj6IDK7rITs"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=qj6IDK7rITs" border="0"></img></a> </div><img src="http://feeds.feedburner.com/~r/AlbuquerqueCriminalLawyerBlog/~4/GXHvaUGELH8" height="1" width="1"/> http://feedproxy.google.com/~r/AlbuquerqueCriminalLawyerBlog/~3/GXHvaUGELH8/the-law-of-contracts-and-crimi.html http://www.albuquerquecriminallawyerblog.com/2012/01/the-law-of-contracts-and-crimi.html Criminal Pleas and Dispositions Sentencing court record criminal sentencing enforcing plea agreements non-reccord court cases Mon, 23 Jan 2012 10:40:24 -0700 http://www.albuquerquecriminallawyerblog.com/2012/01/the-law-of-contracts-and-crimi.html