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Voluntary Intoxication as Defense (NJ Appeal Attorney Update)


by in Criminal Appeals, DWI Defense

In this recent case decided on appeal, the defendant claimed his attorney was ineffective at his criminal trial because the attorney did not raise the issue of voluntary intoxication as a defense to defendant’s shooting and weapons charges. Summary by Mark Friedman.

State v. Victor McCargo, unpublished opinion, App. Div. Docket No. A-5691-06T4 (November 16, 2009) – Denial of PCR reversed, remanded for evidentiary hearing. “One of the issues defendant raised in his petition was his allegation that his trial counsel had been ineffective for failing to raise his intoxicated state at the time of the shooting as a defense.

He included with his petition certifications from his brother Dante McCargo and his friend Arnold Lyles, as well as his own certification, detailing the amount of alcohol he had consumed…. In [his] certification, [defense counsel] stated that he left it to his co-counsel to discuss the question of intoxication with defendant since co-counsel was to conduct defendant’s direct examination….

If an allegation of ineffective assistance of counsel is to fail because of a strategic choice made by counsel, there should be a showing that, indeed, counsel considered the issue and selected one avenue of defense over another. There would be many sound reasons for trial counsel to have elected not to pursue an intoxication defense in this matter, but we are unable to conclude from this record that such an election was in fact made….

Because there is no record on this question, we are unable to conclude whether it is entirely devoid of merit or whether defendant is entitled to further relief. We thus reverse the order denying post-conviction relief and remand the matter for further proceedings.” (Patricia Drozd, Designated Counsel)

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