New Jersey’s highest court recently held that law enforcement authorities can compel defendants to turn over their phone passcodes in order for them to retrieve information from the device through a search warrant. In a 4-3 opinion, the majority of the Supreme Court of New Jersey agreed that production of cellphone passcodes is testimonial in nature, but then went on to apply the foregone conclusion exception to hold that the passcodes must be released in light of a search warrant for the phone. Justice LaVecchia authored a dissent that argued that the information is protected by the U.S. Constitution’s Fifth Amendment right against self-incrimination because it is part of the defendant’s thoughts, which cannot and should not be compelled.
Brandon D. Minde, a partner and chair of the firm’s criminal defense practice group participated on the brief for amicus curiae New Jersey State Bar Association, which argued in support of the issues raised in the minority opinion against forced disclosure of “mental thoughts.” Minde, a former prosecutor, is certified by the NJ Supreme Court as a Criminal Trial Attorney and is chair of the NJSBA Criminal Law Section.
Minde was quoted in the NJ Star Ledger article on the case: “Brandon Minde, the chair of the New Jersey State Bar Association’s Criminal Law Section, said the organization agrees with the dissenting opinion and will continue to monitor how this decision affects privacy concerns for New Jersey residents. “In a world where right to privacy is constantly shrinking, our Constitutional rights must not,” Minde said.” https://www.nj.com/news/2020/08/defendants-can-be-forced-to-turn-over-phone-passcodes-njs-highest-court-rules.html
Minde was also quoted in the New Jersey Law Journal on the case: “The NJSBA agrees with the issues raised in the minority opinion related to the rapidly evolving nature of technology and the protection individuals should have of their ‘mental thoughts’ in the face of governmental compulsion in a criminal matter,” said Brandon Minde, chair of the NJSBA Criminal Law Section and chair of the criminal defense practice group at Dughi, Hewit & Domalewski in Cranford. In a world where the right to privacy is constantly shrinking, our Constitutional rights must not,” Minde said. “The NJSBA will continue to monitor the case and others that center on the issue of people being forced to disclose their ‘mental thoughts’. This is certainly an issue that will be raised again.” https://www.law.com/njlawjournal/2020/08/11/why-cellphone-passwords-per-divided-nj-high-court-are-not-contents-of-ones-mind/
If you were arrested, or receive a search warrant, or are the subject of a potential criminal investigation in New Jersey, you should be represented by an experienced criminal defense attorney in New Jersey. Please contact Brandon Minde at (908) 272-0200, if you have any questions about your rights in any criminal proceeding.
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The information is provided solely for information purposes. It should not be construed as legal advice on any specific matter and is not intended to create an attorney-client relationship. The information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based upon particular circumstances. Each legal matter is unique, and prior results do not guarantee a similar outcome.
Brandon Minde was recently quoted in an article on nj.com in connection with a high-profile, white collar criminal defense matter he is handling in federal district court in New Jersey. The case was filed by the United States Attorney for the District of New Jersey and alleges wire fraud, bribery, conspiracy to commit mail fraud, mortgage fraud and tax fraud against a former public official. As reflected in the article, Mr. Minde’s client denies any wrongdoing. Mr. Minde is a partner with the firm and is certified by the Supreme Court of New Jersey as a Criminal Trial Attorney. He is the Chair of the Criminal Law Section of the New Jersey State Bar Association and heads the criminal defense practice of Dughi, Hewit & Domalewski, P.C.
The article can be found by clicking this link: NJ.com – Ex-N.J. Assemblyman charged by feds in alleged kickback schemes while holding illegal city job
Dughi, Hewit & Domalewski, P.C. is proud to announce that Brandon D. Minde, a trial partner and Chair of the NJSBA Criminal Law Section, will be part of the faculty for the NJICLE live webcast: Remote and Virtual Criminal Court Proceedings from Initial Charges through Sentencing- Practice Considerations in a COVID-19 World on Friday, June 26, 2020 at 9:00 am.
This live webcast offers a day in the life of an attorney in Remote and Virtual criminal court proceedings – From the time an attorney receives notice that a client has been arrested to conclusion of proceedings; for novice to seasoned practitioner; from court rules and procedures to their application in a real-life virtual proceeding; proven practical tips for a seamless virtual court experience and much more. The program will take you thru step-by-step from initial training to review and application of pertinent rules and procedures during live, mock proceedings thru various stages of virtual court proceedings – CJP court/detention hearings, first appearance, discovery conferences, plea hearings, oral arguments, contested testimonial hearings (Wade, Suppression), expert testimony, bench and jury trial, sentencing etc.
The faculty of well-respected defense attorneys and prosecutors will engage in real-life remote and virtual criminal court proceedings before the Hon. Sohail Mohammed, Judge of the Superior Court.
Mr. Minde is the head of Dughi, Hewit & Domalewski’s criminal law department, is a former Essex County Assistant Prosecutor, and is certified by the Supreme Court of New Jersey as a Criminal Trial Attorney.
Brandon D. Minde, a trial partner and Chair of the NJSBA Criminal Law Section, recently authored an Op-Ed that appeared on NJ.com., titled “Will we ever return to the days of a packed courthouse?” The article explores how New Jersey trial attorneys have been adapting to the virtual court proceedings which have been taking place in New Jersey due to the coronavirus.
Justice Thurgood Marshall wrote, “Mere access to the courthouse doors does not by itself assure a proper functioning of the adversary process.” Of course, mere access to Zoom video does not itself assure ideal “access to the courthouse doors,” but in COVID-19 times, it’s a good start and will likely remain as a part of future courthouse operations in New Jersey even after New Jersey fully recovers from the effects of COVID-19 and resumes more “normal” operations. Mr. Minde is the head of Dughi, Hewit & Domalewski, P.C.’s criminal law department, is a former Essex County Assistant Prosecutor, and is certified by the Supreme Court of New Jersey as a Criminal Trial Attorney.
Posted Jun 01, 2020 on NJ.com
By Brandon D. Minde
I appeared before an Essex County judge recently to argue a motion to dismiss. I am an attorney. I do this all the time. But lately, I have been doing so from home, in front of my computer, dark suit and all, at least from the waist up.
The same afternoon I participated in a plea agreement before a Somerset County judge. Same home, same computer, just a different case and county. I did not take a law school course in virtual justice. No lawyer did. But we are learning fast. The pandemic has forced virtual justice upon us. And rather than be scared, we should embrace it.
“Mere access to the courthouse doors does not by itself assure a proper functioning of the adversary process.” Justice Thurgood Marshall wrote those words in 1985 when he, of course, assumed the actual courthouse doors would always physically open. But he could not have foreseen what we now face: COVID-19, stay at home orders, social distancing.
“Access to the courthouse doors” has now taken on a new meaning.
Courthouses remain physically shut, but those of us who spend our days seeking to protect individuals’ rights and pursue justice continue our work in new, innovative ways.
Virtual arraignments to read formal criminal charges. Check.
Virtual case management conferences to discuss discovery issues or plea negotiations, and even virtual sentencings. Check, check and check.
We have learned some things along the way. Straightforward, less contentious proceedings have adjusted well to the virtual world. For example, a client’s first appearance where the pending charges are read, potential exposure advised, and bail conditions for release are given.
I am less confident about courtroom situations that seem made for, well, live courtroom TV. If I virtually confront an accuser who has given conflicting stories, or surprises an expert witness with old social media posts showing her bias, will my impact on the jury be the same as if they were sitting a few feet away? I doubt it.
Our judicial system is steeped in history and tradition. (Think of the black robes.) It is slow to change. In law school I learned to ask a judge, “permission to roam the well.” That’s court speak for, “may I please get up and walk in front of you?”
A lawyer is someone who solves problems. And COVID-19 presents a big one.
We need technology to plug the gap where history and tradition fall short because what’s the alternative? To shut down the legal system for months? For years? For every new outbreak? In a country that requires “access to the courthouse doors” to ensure justice and liberty, that would be unthinkable.
During one recent virtual hearing, I wanted to discuss a matter privately with the judge and prosecutor. Before, I would request that we meet in the judge’s chambers. Now, I requested we move to the judge’s virtual chambers (read: Zoom video breakout room). It all worked smoothly … and until recently I, and many of my legal colleagues, had never even heard of Zoom.
Many more of us will soon be touched by these innovations. New Jersey is starting a pilot program for virtual grand juries. People with traffic tickets are getting notices for virtual municipal court hearings. There are certainly differing views on virtual court appearances and virtual grand juries, but I am proud the legal system is not standing still in the face of COVID-19.
For the moment, virtual proceedings are limited and most substantive ones require consent from all the parties involved. But things are changing fast as we simply do not know when we will return to the days of hundreds of people crowding into courthouses. Those who have had jury duty remember the crowded jury rooms, courtrooms, cafeterias, hallways and elevators. Post-pandemic what will be the reaction the first time someone sneezes in a jury box?
One day soon, you may receive a jury notice form instructing you on which day and at what time to login to Zoom for jury duty from your dining room table. Of course, mere access to Zoom video does not itself assure ideal “access to the courthouse doors,” but in these troubled times, it is a good start.
Brandon Minde is an attorney at Dughi, Hewit & Domalewski, P.C, in Cranford and is certified by the Supreme Court of New Jersey as a criminal trial attorney.
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Everyone in New Jersey has been affected by the COVID-19 pandemic one way or another. If you are divorced or divorcing, whether you are the recipient of alimony and/or child support or the payor, your pocket has most likely already felt the devasting economic impact of the coronavirus. We have seen almost every industry in New Jersey adjust in an attempt to survive during this challenging time. You may ask, am I expected to adjust? Am I permitted?
It is common during these trying economic times to have questions regarding your alimony or child support obligations and entitlements under New Jersey law due to the impact of COVID-19. For example, if you are ordered to pay alimony and child support, but recently lost your job, are you entitled to immediate relief? Conversely, if you are the recipient of support and the payor lost his or her job, are you expected to forego your court ordered payments or reduce them?
Ordinarily, a Court application is necessary to obtain modification of responsibility and entitlement when there is a substantial change of financial circumstances. However, alternative mechanisms are also available in New Jersey which often produce much more expeditious and less expensive form of relief without Court application, such as Binding Arbitration and Economic Mediation.
The attorneys in the Family Law Department at Dughi, Hewit & Domalewski are here to answer all of your questions. Their credentials are set forth on the Firm’s website. Each lawyer is skilled in being able to carefully guide you through the process.
While the coronavirus pandemic is affecting us all, the answers to your questions are fact specific and can only apply on a case by case basis. To learn what your options are do not hesitate to call (908)272-0200 or e-mail Mario C. Gurrieri, Esq. (mgurrieri@dughihewit.com), Kristin M. Capalbo, Esq. (kcapalbo@dughihewit.com) or Jennifer L. Young, Esq. (jyoung@dughihewit.com) for an initial telephonic or virtual conference.
Dughi, Hewit & Domalewski is proud to announce that the New Jersey State Bar Association Medical Malpractice Special Committee has named John Dughi the 2020 recipient of the “Senator William O. Barnes NJSBA Award for Excellence in Medical Malpractice Litigation.”
The Senator William O. Barnes NJSBA Award for Excellence in Medical Malpractice Litigation recognizes those lawyers who have demonstrated “exemplary civility, integrity and professionalism” in their practice and career and who have made “a significant contribution to the practice of law in the field of medical malpractice.” No lawyer fits that description more than John – a quintessential professional who has been a true leader and the “Dean of the Malpractice Bar” for many years.
John’s storied career began after he graduated from the Cornell University school of law in 1972. In 1979, he and Russ Hewit formed Dughi & Hewit. For almost fifty years, John has defended physicians and other health care providers, taught trial attorneys at countless ICLE courses and mentored young attorneys in our firm and across the state.
John tried his first malpractice case in late 1973 and his most recent trial was completed in 2019, both were defense verdicts. Over the course of his career, John conducted 255 trials with very few defeats and many notable and reported decisions in the medical legal field. He has tried malpractice cases in 20 of the 21 counties in New Jersey. He has counseled most of the major malpractice insurance carriers on their exposure issues while defending thousands of their insureds. He tried and most often won against the top plaintiff’s attorneys in New Jersey and from NYC and Philadelphia.
He has tried to a conclusion notable malpractice cases many of which are reported decisions establishing important concepts in the medical legal field. He handled the re-trials of Canesi v. Wilson regarding the evidential weight of PDR warnings, and Cho v. Park fundamentally changing the procedures for in limine and other pre-trial motions. He tried Komlodi v. JFK (twice) changing the standard of proof for intervening causation and Scafidi preexisting harm charge language, Austin v. Deitch establishing the remedy for a violation of the affidavit of merit statute, Hutchinson v. Feldman changing the law to permit physician defendants to be questioned on standard of care issues, and Hudgins v. Serrano which clarified the standards for remittitur and qualification of experts. It is most notable that in each of these trials the outcome was a victory for John’s client notwithstanding the appellate court’s impact upon the defense or prosecution of malpractice matters.
John practiced in an era when most cases were tried and not settled, against legendary names in the malpractice bar, including this Award’s namesake, William O. Barnes.
The COVID-19 pandemic has had a major impact on commercial real estate transactions in New Jersey. Most significantly, many commercial landlords and tenants in New Jersey are experiencing the financial repercussions from the coronavirus and governmental shut down orders which has prompted requests from tenants for forbearance, concessions or forgiveness of lease payments or termination of the lease entirely. In New Jersey, while the Governor has signed an Executive Order providing some relief to residential tenants during the pandemic, there is no parallel legislation or executive orders applicable to to address commercial landlord/tenant issues.
At DHD, we have represented both commercial landlords and commercial tenants in New Jersey facing economic hardship. The economic shut down has presented significant challenges to both commercial landlords and tenants and we understand the legal and financial issues resulting from the COVID-19 pandemic and governmental shut down in New Jersey.
As a tenant whose business has been deemed “non-essential” by the government, this means no foot traffic in the leased space, a significant decline in revenue, and resulting constraints on the ability of the tenant to make lease payments. While many leases contain “force majeure” provisions, it is essential that you, as a tenant, seek legal advice to determine whether these or any other provisions of your lease provide you with the ability to forbear lease payments or even terminate the lease without default as a result of the pandemic. We have significant experience in assisting commercial tenants in New Jersey facing this situation and have successfully negotiated early lease terminations at reduced costs offering some relief to commercial tenants.
Commercial landlords in New Jersey are also significantly impacted by the COVID-19 pandemic. Oftentimes, landlord leased property is financed and it is the tenants’ lease payments that pay the mortgage. What action should a landlord pursue? File an eviction action? Agree to rent concessions? Each individual circumstance is unique and requires thoughtful analysis and legal advice. The Governor’s Executive Order in New Jersey does not apply to commercial leases, therefore, landlords are not prohibited from filing an eviction action if the tenant defaults in the payment of rent. While this is a consideration, it may not be the most prudent course of action. Furthermore, the lease may contain force majeure provisions or other tenant defenses to payment of rent that should be analyzed and interpreted by counsel prior to the landlord taking any action in New Jersey. In some cases, a concession of rent may be considered by the landlord. However, a rent concession should not be agreed to automatically and should be done in conjunction with an overall review of the circumstances applicable to the particular tenant and the lease between the parties.
Whether representing a commercial tenant or a commercial landlord in a lease dispute arising due to COVID, DHD has the expertise and legal knowledge to assist our commercial real estate clients in seeking amicable resolutions to lease challenges and navigating the unique circumstances resulting from the pandemic in New Jersey.
Please contact Lori Ciarrocca Duffy, Esq., if you are a commercial tenant or commercial landlord and have any questions about your rights or obligations under a commercial lease arising from the COVID-19 pandemic in New Jersey.
The information is provided solely for information purposes. It should not be construed as legal advice on any specific matter and is not intended to create an attorney-client relationship. The information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based upon particular circumstances. Each legal matter is unique, and prior results do not guarantee a similar outcome.
The Coronavirus/COVID-19 pandemic has affected the residential real estate market in New Jersey as it is one of the states most impacted by the pandemic. Although the Governor has deemed residential real estate transactions an “essential” business in New Jersey, many Sellers are hesitant to put their homes on the market for fear of brokers and potential buyers entering their homes, and many would-be buyers are rethinking a home purchase in light of the uncertain economic impact that the pandemic may have on them.
However, as the state slowly re-opens, we anticipate that the New Jersey residential real estate market to re-energize as mortgage interest rates are at all-time lows and many urban dwellers are inclined to “make the move” to the suburbs.
As the New Jersey residential real estate market picks up, buyers and sellers should be aware of certain contract changes which have emerged in light of the pandemic. New Jersey realtors have adopted an Addendum Regarding Coronavirus to be included with their standard form broker contract. Essentially, this addendum addresses two major issues: (i) potential closing delays that may occur during the real estate transaction as a result of the pandemic, and (ii) a change in financial circumstance of buyers. First, the addendum provides for a delay of the closing on account of potential delays resulting from COVID-19. For example, many lenders are working remotely. This could lead to administrative delays in final approval of the mortgage. In this circumstance, the addendum would allow for a closing to be delayed without either party being in default. Second, the addendum allows for a buyer to cancel the contract without default in the event the buyer loses his or her job or the pandemic otherwise results in a loss of their income. Even as the economy slowly re-opens, its economic impacts are likely to be felt for a significant period of time, therefore, it is essential when representing a buyer to include this provision in the contract.
In addition to inclusion of the broker form COVID-19 addendum, during the attorney review process, provisions to address delays which may occur during the inspection and appraisal process and the issuance of the fire/carbon monoxide certificate issuance should be considered. While, generally, buyers and sellers are held to perform the foregoing within certain prescribed time periods (otherwise risk termination of or default under the contract), delays due to the pandemic must be considered and allowed to account for the limitations imposed on businesses. These provisions would serve to protect both parties from delays which may be out of their control.
At DHD, we have successfully closed many residential real estate transactions in New Jersey over the history of our firm and during this pandemic. We take the utmost precautions to protect our clients both personally and contractually. Purchasing a home is usually one of the most significant financial investments one can make and we are dedicated to vigorously representing our clients and addressing their specific needs regardless of the circumstances.
If you would like to discuss a potential sale or purchase of residential lease or some other issue pertaining to residential real estate, please contact Lori Ciarrocca Duffy, Esq.
The information is provided solely for information purposes. It should not be construed as legal advice on any specific matter and is not intended to create an attorney-client relationship. The information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based upon particular circumstances. Each legal matter is unique, and prior results do not guarantee a similar outcome.
Dughi, Hewit & Domalewski, PC, is pleased to announce that Brandon Minde has become the Chair of the Criminal Law Section of the New Jersey State Bar Association for the 2020-2021 term. The Criminal Law Section, composed of members from the defense bar, prosecutor’s offices, and former members of the judiciary, deals with information and education concerning the improvement of the criminal justice system, and takes an active role in responding to developments which affect its membership and in suggesting methods through which the legal system can more effectively serve the interests of Criminal Law Section members and their clients. Toward that end, Brandon recently served as the Chair of the section’s Subcommittee on COVID-19 Challenges to Criminal Practice, which provided several recommendations for continuing the practice of law that were ultimately implemented by order of the NJ Supreme Court.
Brandon is a partner with the firm, is certified by the Supreme Court of NJ as a Criminal Trial Attorney, and leads DHD’s criminal defense practice.
