White Collar Criminal and Regulatory Lawyer Blog

In State v. Kaitner, A-8 Sept. Term. 20011 (decided May 1, 2012), the issue was whether Long Branch police officers who responded to a noise complaint properly seized pills and a controlled dangerous substance belonging the home owner. The Supreme Court of New Jersey, in a per curium opinion, affirmed the Appellate Court ruling that the search was improper and that the CDS must be suppressed.

In October 2009, Long Beach police officers responded to a noise complaint at a home rented by the Defendant and four other persons. While searching for the home owners, a police officer eventually made his way into Defendant's bedroom where pills and an alleged CDS were located. When the Defendant, who was not at the home at the time of the party or the search, returned to the home, he was arrested and charged with possession of a CDS.

In ruling that the search at issue was impermissible, the New Jersey Supreme Court agreed with the Appellate Division that although the initial entry into the home to deal with the noise complaint was lawful, the officers' searching of the entire home was not objectionably reasonable to abate the noise violation. Furthermore, the Court noted that the Defendant retained a reasonable exception of privacy in his bedroom.

Ambrosio & Tomczak is a full service law firm which handles a wide variety of criminal matters.

Ambrosio & Tomczak is pleased to announce that Gregory E. Tomczak, Esq. and Michael J. Jurista, Esq. have each been recognized in New Jersey Monthly magazine by Super Lawyers as a 2012 New Jersey Rising Star. Mr. Tomczak was selected as a Rising Star in the area of white collar criminal defense and Mr. Jurista was selected as a Rising Star in the area of business litigation. This honor is reserved for less than 2.5% of attorneys in New Jersey.

Previously, Mr. Tomczak has been named a Rising Star in 2009, 2010 and 2011.

On April 30, 2012, Ambrosio & Tomczak officially moved into their new offices located at Hillside Square, 8 Hillside Avenue, Suite 103, Montclair, New Jersey 07042.

Ambrosio & Tomczak provides strategic results-driven legal counsel and business solutions to a wide variety of clients throughout New Jersey and New York. Ambrosio & Tomczak's primary areas of practice include Corporate Services, Commercial Litigation, Solid Waste Compliance & Litigation, Government Investigations & Criminal Defense, Real Estate, Personal Injury, and Bankruptcy.

In the first case of its kind in the District of New Jersey, Bankruptcy Judge Michael Kaplan tacitly approved what is known as a Chapter 20 bankruptcy filing. A "Chapter 20" bankruptcy, which is not found in the bankruptcy code, is a term for a debtor filing for a Chapter 13 bankruptcy after filing for a Chapter 7 bankruptcy and receiving a Chapter 7 discharge on unsecured debts.

Note that the debtor cannot receive a Chapter 13 discharge if the debtor received a Chapter 7 discharge in a Chapter 7 case filed within the last 4 years.

A debtor can file a Chapter 13 bankruptcy after receiving a Chapter 7 discharge in order to handle liens that survived the Chapter 7 case. Or the debtor can manage a 3- or 5-year repayment plan of debts that were not discharged in the Chapter 7 bankruptcy. Essentially, the debtor gets additional time to pay off non-dischargeable debts and avoid collection actions by the creditors.

On November 18, 2011, in the matter captioned In re Scotto-DiClemente, 459 B.R. 558, Judge Kaplan held that: (1) the debtor's ability to use Chapter 13 plan to strip off wholly unsecured junior mortgage liens on his principal residence was not contingent upon debtor's receipt of Chapter 13 discharge; and (2) the Chapter 13 case, while filed close on heels of Chapter 7 case in which debtor was granted a dis-charge only six months earlier, was not filed in "bad faith," so as to be subject to dismissal.

As reported in the New York Times, Bankruptcy filings fell nearly 12 percent in 2011 from the year before.

During 2011, there were approximately 1.4 million bankruptcy filings. The vast majority of the filings -- about 70 percent -- are Chapter 7 bankruptcies, which allow individuals to avoid repaying their debts if they pass a means test. The substantial majority of the remaining filings were under Chapter 13 of the Code, which requires filers to pay back a portion of their debts over three to five years.

Anyone wishing to discuss their options under the bankruptcy code should call to make an appointment.

In a case of great technological interest, on February 29, 2012, the Seventh Circuit Court of Appeals in United States v. Flores-Lopez held that searching a cell phone found on a defendant incident to an arrest is a permissble warrantless search.

In Flores-Lopez, the defendant was arrested for selling drugs. At the time of his arrest, an officer located and searched a cell phone in his possession for the purpose of determing the cell phone's number. Subsequently, the government used the cell phone number to subpoena three-months worth of defendant's cell phone records. After the defendant was convicted, the defendant appealed the conviction on the ground that the cell phone records were obtained via an impermissible search.

In upholding the conviction, the Court considered many factors including the nature of today's cell phone technology. For example, the Court noted that cell phones of today can be equipped with applications which allow a user to remotely wipe a cell phone of all of its data.

Although the search was deemed permissible, and thus the conviction upheld, the Court noted that not all searches of this kind would neccesarily be permissible. Indeed, the Court of Appeals noted that this search only yielded a cell phone number and the result may have been different had the government improperly obtained data, as opposed to just the cell phone number.

Ambrosio & Tomczak handles a wide variety of criminal matters.

On January 9, 2012, Governor Chris Christie signed into law a bill that creates the New Jersey Trade Secrets Act, modeled after the Uniform Trade Secrets Act which has been adopted in 46 states and the District of Columbia.This Act provides specific remedies to businesses in the event that a trade secret is misappropriated.

Pursuant to the terms of the Act, trade secrets which may be subject to protection include, but are not limited to, proprietary information with economic value such as a formula, method, design, invention, drawing, program device, process or business data compilation which has been subject to reasonable efforts to maintain its secrecy.

Any business harmed pursuant to the Act may seek an injunctive relief, damages resulting from actual loss or unjust enrichment, reasonable royalties, attorney's fees, expert fees and/or punitive damages.

Ambrosio & Tomczak is a full-service law firm equipped to handle a wide variety of commercial litigation matters.

Citing 30 examples of organized crime infiltration, the New Jersey State Commission of Investigation (SCI) recently released a far reaching report alleging severe deficiencies in the state's Solid Waste Licensing Law, also known as the A-901 Law, and recommended changes allegedly designed to broaden its scope in an effort to combat corruption in the solid waste and recycling industries. The 78 page report, released to the public on December 6, 2011, may be reviewed in its entirely on the SCI website.

Among the key findings of the report are that solid waste and recycling industry today "remains open to manipulation and abuse by criminal elements that circumvent the State's existing regulatory and oversight system ..." and that convicted felons, including organized crime members and associates, profit heavily from commercial recycling, which, though a lucrative adjunct to solid waste, has remained largely unregulated." The SCI report went on to state that "Commission's latest investigation has revealed that individuals who were banned from the solid waste industry in New Jersey years ago because of ties to organized crime or other criminal activities nonetheless have found ways to conduct a lucrative commerce in waste-hauling and recycling here."

While the intent of the regulatory changed proposed by the SCI is laudable, they have been widely criticized since their release and no doubt will make the already cumbersome process of obtaining and maintaining an A-901 license even more so for legitimate business concerns.

This past week, the Judicial Conference of the United States instituted a new policy designed to deter litigants from constantly requesting that entire court records be sealed. The new policy states that federal judges are not to seal an entire court record unless required to do so by statute or "justified by a showing of extraordinary circumstances." Rather, federal judges are instructed to "blackout" confidential information or seal certain specific documents.

In a recent decision, the Third U.S. Circuit Court of Appeals affirmed the the prior conviction of former state Senator Wayne Bryant. In upholding Bryant's former convictions on charges of honest services fraud, mail fraud and bribery, the Third Circuit rejected arguments that prosecutors allegedly violated Bryant's rights by interfering with pretrial witnesses, that the evidence was insufficient, and that the jury instructions were defective.

The facts surrounding Bryant's conviction have been well-published. In November 2008, a federal jury found that Bryant steered more than $10 million to R. Michael Gallegher, former dean of the School of Osteopathic Medicine at the University of Medicine and Dentistry of New Jersey, in exchange for extra state funding and a "low show" teaching job (a job which was used to inflate Bryant's pension benefits). Based on the foregoing, Bryant was sentenced to four (4) years and Gallagher was sentenced to eighteen (18) months.

Ambrosio & Tomczak is a full service law firm.

In a decision of great import to mentally ill defendants, the Appellate Division recently overturned longstanding New Jersey precedent which required that an insanity defense first be raised in a separate trial before substantive issues were raised. In State v. Handy, A-04101-09, which overturned State v. Kahn, 175 N.J. Super. 72 (App. Div. 1980), the Appellate Division expressed concern that the former system was fundamentally unfair insofar as a defendant who succesfully pled insanity loses the chance to exonerate himself completely: "Rather than requiring the State to prove the elements of an offense in a criminal proceeding, Kahn essentially presumes that the State has already done so."

In reaching its decision, and in overturning Kahn, the Appellate Division explored other federal and state court decisions, as well as New Jersey's Code of Criminal Justice.

Notwitstanding the above, the Handy Court did express some concern that its decision could create some confusion for future juror members. As stated by Judge Jack Sabatino, "[j]urors may have some difficulty in appreciating how a defendant can legitimately argue in the first part of the trial that he acted rationally to defend himself and then take a seemingly opposite stance in the second phase by asserting his insanity." Because of the potential for confusion, the Court sent the issue to the Supreme Court's Committee on Criminal Practice to set up certain rules on how to deal with this situation.

Ambrosio & Tomczak is a full-service law firm which specializes in criminal defense.

Pursuant to the Code of Conduct for United States Judges, a judge shall disqualify himself/herself if they have a financial interest in the matter in controversy or in a party to a proceeding. Notwitstanding this judicial cannon, sometimes even the United States Supreme Court makes mistakes.

In a recent interview, Supreme Court Justice Samuel Alito recently revealed that he improperly took part in FCC v. Fox Television Stations, et al. because Justice Alito owned $2,000 worth of Disney stock (ABC, Inc., a subsidary of Walt Disney, Co., is also a party to the action). Although Alito voted against ABC's interest, Alito recognized that his particpation was a an overisght and should have been discovered during the normal course of conflct checks.

Gregory E. Tomczak, Esq., a partner of Ambrosio & Tomczak, was quoted on the front page of the Boston Globe on June 18, 2011 in the article entitled, "In appeal, DiMasi case to test high court ruling." The arcticle discusses the recent verdict of a federal court jury which convicted former House Speaker Salvatore F. DiMasi of public corruption and the appeal which is scheduled to be filed by Mr. DiMasi's counsel. Counsel for DiMasi believes that an appeal is proper insofar as the prosecution failed to prove that DiMasi overtly promised support for a software company in exchange for secret payments.

Mr. Tomczak does not agree that an overt promise must be proven by direct evidence in order to violate the law; circumstantial evidence is sufficient to prove DiMasi's guilt. In particular, Mr. Tomczak was quoted as saying, "I think it's pretty clear as long as there is some type of payment that benefits the person accused, that's enough."

Mr. Tomczak is a certified criminal trial attorney and specializes in white collar criminal defense.

In its June 2011 Enforcement Alert, the New Jersey Department of Environmental Protection advised that all transporters of solid, regulated medical, or hazardous waste, are now required to own or lease the equipment registered with the DEP. These new rules affect all persons and companies who are engaged in the transportation of solid waste, regulated medical waste and hazardous wastes, or those that lease waste transportation equipment.

According to the Alert, anyone who leases equipment "must submit a copy of the valid lease agreement and a certification to the Department when registering this equipment." The aforementioned lease certifications must state that the party registering "exercise[s] exclusive use, possession and control over each piece of solid waste equipment which is included in the application for registration statement while such equipment is used to transport solid waste."

This enforcement alert is extremely important insofar as the DEP's Transportation Oversight Unit has begun reviewing all leases in order to ensure they are in conformance with these regulations. Any violation of these regulations could result in appropriate enforcement actions.

Ambrosio & Tomczak is a full-service law firm which specializes in Solid Waste Compliance and Litigation.

The New Jersey Supreme Court recently concluded by a slim majority that suspected drunken drivers who consent to a breath test, but who fail to give an adequate sample, need not be given a second formal warning before being subjected to a second test.

In State v. Schmidt, A-35-10, the Defendant was given a field sobriety test after he was stopped for erratic driving. Following same, the Defendant was taken to the police station, read his Miranda rights, and read the required 11-paragraph Motor Vehicle Commission statement which states, among other things, that the Defendant is required to submit a breath sample and the right to remain silent and to consult an attorney are unavailable at this time. After receiving said statement, the Defendant consented to the breath test. However, the Defendant failed to give an adequate sample by way of volume and/or duration. Accordingly the officers warned him that he was facing a refusal charge if he did not provide a sufficient sample. The Defendant then thereafter gave the third sample which also was inadequate thus prompting the police to charge the Defendant with refusal. Based on the foregoing, the Defendant was convicted in Municipal Court.

Continue reading "Second Breath Test Warning Not Required" »