Assault conviction Reversed After Judge Wrongfully Changes Jury Verdict
- February 20, 2015
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Francene Oprihory (a.k.a. Oriphory) was indicted in the Superior Court of New Jersey, Bergen County, for aggravated assault by purposely, knowingly or recklessly causing injury to a Bergen County Sheriff’s Officer (N.J.S.A. 2C:12-1b(5)(h)) and resisting arrest by using physical force or violence against another Bergen County Sheriff’s Officer (N.J.S.A. 2C:29-2a(3)(a)). The charges arose when the court officers were removing the defendant from a matter wherein her friend was the defendant. The defendant was making comments and, after multiple admonitions by the officers, it became apparent that she would continue to disrupt the proceedings as long as she remained in the courtroom. After some minor difficulty removing Oriphory from the courtroom, Oriphory struck one of the officers once outside then tried to push the other over the fourth floor balcony railing when he attempted to handcuff her. Oriphory was then taken to the ground by both officers and continued to struggle in an effort to avoid being handcuffed. Following a jury trial, the jury announced a not guilty verdict on count one and guilty on count two. Oriphory also pled guilty to a violation of probation at sentencing based on the guilty finding. The trial judge, in spite of the jury’s announced verdict, saw a check mark on the line for “guilty” on the verdict sheet for count one and after the jurors left the courtroom and sentenced the defendant to a concurrent four-year period of incarceration for count one. It is a well settled legal principle that the jury shall decide the guilt or innocence of a defendant. State v. Simon, 79 N.J. 191 (1979). A judge may not modify a verdict and may only act upon the verdict returned by the jury. State v. Black, 380 N.J. Super. 581 (App. Div. 2005) Once a verdict is accepted and the jury is discharged, the verdict may not be modified by the court. State v. Jenkins, 349 N.J. Super. 464 (App. Div. 2002). With regard to count two, a recording of the defendant’s comments before and during the incident giving rise to the charges was played over and over for the jury based on the prosecutor’s assertions that it was somewhat unclear and needed to be heard repeatedly and was then followed up by substantial witness testimony. There was also no consideration of N.J. R.E. 403 to determine whether the probative value outweighed the prejudicial value of the evidence, in addition to N.J.R.E. 402 and 404. The Appellate Division found this potentially deprived the defendant of a fair trial under the principles established by State v. Orecchio, 16 N.J. 125 (1954). On appeal, in State v. Oriphory, the NJ Appellate Division vacated the conviction for count one, reversed the conviction for count two and vacated the plea to the violation of probation as no longer having a supporting factual basis. The matter was remanded for a new trial in another vicinage in order to preserve the defendant’s right to a fair trial. Assault and attempted assault charges are very serious and bear severe consequences. If you are facing assault charges, you should obtain experienced criminal defense counsel immediately to insure your rights are protected. For more information about assault, illegal possession of a handgun, possession of a weapon for an unlawful purposed or other serious criminal charges in New Jersey, visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.