04-15-08 State of New Jersey v. James Robinson
A-6381-05T4
In this appeal, we reverse the trial court's denial of
defendant's motion to suppress evidence found in his dwelling.
Our decision is grounded exclusively under the rights conferred
in Article I, paragraph 7 of the Constitution of the State of
New Jersey.
In executing a knock-and-announce warrant, the police must
give the occupants of the dwelling a reasonable opportunity to
respond before resorting to the use of force to gain entry to
the residence. Here, the police broke down the entrance door of
the dwelling, twenty to thirty seconds after announcing their
presence, thus converting the knock-and-announce warrant into a
de facto no-knock warrant. Furthermore, the use of a so-called
flash bang explosive device by the police was factually
unwarranted, and rendered a nullity the warranannounce condition imposed by the court.
Posted by Ken Vercammen NJ Law Blog a
Thursday, May 22, 2008
States can permit Post Conviction Motions in cases before 2004 based on Crawford Hearsay Challenge.
States can permit Post Conviction Motions in cases before 2004 based on Crawford Hearsay Challenge.
Danforth v. Minnesota 128 S. Ct 1029 (2008)
Teague v. Lane, 489 U. S. 288 (1989), limits the kinds of constitutional violations that will entitle an individual to federal habeas corpus relief, but does not in any way limit the authority of a state court, when reviewing its own state criminal convictions, to provide a remedy for a violation that is deemed "nonretroactive" under Teague.
Danforth v. Minnesota 128 S. Ct 1029 (2008)
Teague v. Lane, 489 U. S. 288 (1989), limits the kinds of constitutional violations that will entitle an individual to federal habeas corpus relief, but does not in any way limit the authority of a state court, when reviewing its own state criminal convictions, to provide a remedy for a violation that is deemed "nonretroactive" under Teague.
State v. Andre Johnson
State v. Andre Johnson
2-26-08 (A-81-06)
Defendant has standing under state law to challenge the
warrantless search of the duffel bag in the home in which he was
present, and the fruits of the search are suppressed for failure
to comply with the warrant requirements of Article I, Paragraph
7 of the New Jersey Constitution.
2-26-08 (A-81-06)
Defendant has standing under state law to challenge the
warrantless search of the duffel bag in the home in which he was
present, and the fruits of the search are suppressed for failure
to comply with the warrant requirements of Article I, Paragraph
7 of the New Jersey Constitution.
State v. Sulaiman A. Sloane
State v. Sulaiman A. Sloane
2-11-08 (A-40-06)
During a motor vehicle stop, the passenger, like the driver, is
seized under the federal and state constitutions. Police do not
need a reasonable suspicion before they may access the NCIC
database and, because accessing the NCIC database was within the
scope of the traffic stop and did not unreasonably prolong the
stop, there was no basis to suppress the evidence found.
2-11-08 (A-40-06)
During a motor vehicle stop, the passenger, like the driver, is
seized under the federal and state constitutions. Police do not
need a reasonable suspicion before they may access the NCIC
database and, because accessing the NCIC database was within the
scope of the traffic stop and did not unreasonably prolong the
stop, there was no basis to suppress the evidence found.
State v. Quinn Marshall
State v. Quinn Marshall
01-29-08 A-3397-05T4
A judge issued a search warrant for an apartment in a
multiple unit structure but required that the police further
investigate which of two apartments was allegedly involved in
criminality; he did not require that the police return with this
additional, necessary information, but instead issued the
warrant on the condition that it not be executed until that
additional information was obtained. The court concluded that
this process violated the constitutional requirement that a
search warrant be issued by a "neutral and detached magistrate"
because the judge ceded his authority to the discretion of the
police.
01-29-08 A-3397-05T4
A judge issued a search warrant for an apartment in a
multiple unit structure but required that the police further
investigate which of two apartments was allegedly involved in
criminality; he did not require that the police return with this
additional, necessary information, but instead issued the
warrant on the condition that it not be executed until that
additional information was obtained. The court concluded that
this process violated the constitutional requirement that a
search warrant be issued by a "neutral and detached magistrate"
because the judge ceded his authority to the discretion of the
police.
State v. Quinn Marshall
State v. Quinn Marshall
01-29-08 A-3397-05T4
A judge issued a search warrant for an apartment in a
multiple unit structure but required that the police further
investigate which of two apartments was allegedly involved in
criminality; he did not require that the police return with this
additional, necessary information, but instead issued the
warrant on the condition that it not be executed until that
additional information was obtained. The court concluded that
this process violated the constitutional requirement that a
search warrant be issued by a "neutral and detached magistrate"
because the judge ceded his authority to the discretion of the
police.
01-29-08 A-3397-05T4
A judge issued a search warrant for an apartment in a
multiple unit structure but required that the police further
investigate which of two apartments was allegedly involved in
criminality; he did not require that the police return with this
additional, necessary information, but instead issued the
warrant on the condition that it not be executed until that
additional information was obtained. The court concluded that
this process violated the constitutional requirement that a
search warrant be issued by a "neutral and detached magistrate"
because the judge ceded his authority to the discretion of the
police.
State v. Morgan C. Scott
State v. Morgan C. Scott
01-28-08* A-5813-03T4
The primary issue in this case was whether defendant
actually or constructively possessed cocaine that was found in
the vehicle in which he was a passenger. With one judge
dissenting, we affirmed the trial court's decision to deny
defendant's motion for acquittal and his motion for a new trial.
But we remanded for a determination regarding the voluntariness
of statements attributed to defendant and for resentencing.
01-28-08* A-5813-03T4
The primary issue in this case was whether defendant
actually or constructively possessed cocaine that was found in
the vehicle in which he was a passenger. With one judge
dissenting, we affirmed the trial court's decision to deny
defendant's motion for acquittal and his motion for a new trial.
But we remanded for a determination regarding the voluntariness
of statements attributed to defendant and for resentencing.
State v. Thomas Lykes
State v. Thomas Lykes
11-5-07 (A-80-06)
Because Lykes placed his knowledge as to the contents of the
four vials directly at issue, N.J.R.E. 404(b) does not bar the
limited impeachment use of Lykes’ admission of having earlier
held cocaine vials and the questions allowed in this area were
proper. Furthermore, taken as a whole, the trial court’s
response to the jury’s question in respect of Lykes’ knowledge
as to the contents of the vials fairly and adequately instructed
the jury and, therefore, was improper.
11-5-07 (A-80-06)
Because Lykes placed his knowledge as to the contents of the
four vials directly at issue, N.J.R.E. 404(b) does not bar the
limited impeachment use of Lykes’ admission of having earlier
held cocaine vials and the questions allowed in this area were
proper. Furthermore, taken as a whole, the trial court’s
response to the jury’s question in respect of Lykes’ knowledge
as to the contents of the vials fairly and adequately instructed
the jury and, therefore, was improper.
Expungement NJSA 2C:52-1
Expungement NJSA 2C:52-1
Erase Criminal Arrests
Thousands of citizens in New Jersey over the past 20 years have been arrested for criminal, disorderly, and municipal ordinance offenses. They may include your neighbors, friends and loyal church goers. The police keep a record of all arrests and convictions, even if 20 years old. These "secrets of the past" will soon be open to anyone in New Jersey including credit agencies. Under a proposal by the New Jersey Attorney General, for a $15.00 fee, anybody could ask the state police for a person's criminal record, even arrests with not guilty findings. Allowing access to a person's old criminal conviction or arrest record could open the door for discrimination against someone who now is a productive, respected, and law abiding citizen.
Fortunately, if you are a law abiding citizen, you can now have old arrests or convictions erased from public records and police folders. Under NJSA 2C:52-1 et seq. past criminal convictions can be expunged' erased under certain instances. For example, if you were convicted or pleaded guilty to a disorderly person offense (misdemeanor type) more than 5 years ago, and have not been convicted of anything since, you can have your attorney petition to the Superior Court for an Expungement (Erase and removal) of your criminal record. If you plead guilty to a town ordinance (ex. - Seaside Heights Drinking in Public) you can petition for an Expungement after waiting two years. A Juvenile delinquent/guilty finding for a minor can also be expunged/erased under similar circumstances. In addition, minor drug arrests which resulted in first offender conditional discharge can be erased if one year has passed since termination of probation or conclusion of court proceedings.
Most importantly, arrests on frivolous complaints which did not result in a conviction or if charges were dismissed, can be expunged, without waiting. THE EXPUNGEMENT PETITION
You should contact an attorney experienced with handling expungements in the Superior Court. Your attorney will prepare an expungement petition which under state law must contain substantial background information, including:
a. Date of Birth and Social Security #
b. Date of Arrest
c. Statute Arrested For and Statute Convicted
d. Original Indictment, Summons, or Complaint Number
e. Petitioner's Date of Conviction or Date of Disposition
f. Court's Disposition of the Matter and Punishment Adopted, if Any
In addition, the Expungement Petition must have an affidavit that states that there are no charges pending and that the petitioner never previously received a prior expungement. The Expungement Petition is filed in the county where the offense took place, not where the defendant lives. Once filed, the Superior Court will set a hearing within 35-60 days.
As required under the statute, the attorney for the applicant must serve a copy of the Petition Order for hearing and supporting documents on the following people:
1. Superintendent of State Police 2. Attorney General 3. County Prosecutor of the county where the court is located 4. The Chief of Police where the event took place 5. The chief law enforcement officer of any law enforcement agency which participated in the arrest 6. The warden of any institution where the petitioner was confined, and 7. If the disposition was made by a municipal court, upon the municipal court which heard the case.
If you satisfy all other statutory requirements and there is no objection by the entities notified, the court will usually grant an order directing the clerk of the court and all relevant criminal justice and law enforcement agencies to expunge (remove) records of said disposition including evidence of arrest, detention, conviction, and proceedings.
There are additional pleadings which the applicant's attorney must prepare and file. If you have an old offense, it is important that you have the arrest expunged to keep your name and record clean.
Expungement statute was reviewed in recent cases
SUPERIOR COURT - CRIMINAL - FLAT FEE
AGREEMENT TO PROVIDE LEGAL SERVICE
Thank you for contacting Kenneth Vercammen & Associates, PC for representation in a criminal expungement Municipal Court matter.
1. Legal Services to be provided:
2. Flat fee: $1,200- $2,000
We will represent you at all stages from the initial interview to the first appearance in court, if needed. You represent that you have no other arrests or convictions other than the matters you wrote down on the interview sheet.
2. Fees. Fees can be paid by VISA, Master Card, American Express, check, money order or cash. Make checks payable to Kenneth Vercammen PC.
3. Representation/ What We will do for you. We will review and research necessary statutes and caselaw, contact the prosecutor, prepare defenses and determine mitigating factors. We agree to provide conscientious, competent and diligent services on the charges you provided us at the initial consultation. At all times we will seek to achieve solutions which are just and reasonable for you.
WHAT WE WILL DO......
1. Telephone consultation with client;
2. Office consultation with client;
3. Offer sound legal advice to client, plus access to our legal info website www.njlaws.com
4. Opening of file and client may have free client case folder, Municipal Court brochure, DMV points brochure, and Website brochure;
5. Review of necessary statutes and case law;
6. Preparation of VERIFIED PETITION FOR EXPUNGEMENT OF RECORD PURSUANT TO N.J.S.A. 2C:52-6(a)
7. Preparation of CERTIFICATION to Prosecutor;
STATEMENT TO ACCOMPANY PETITION
- Preparation of ORDER FOR HEARING FOR EXPUNGEMENT PURSUANT TO N.J.S.A. 2C:52-6(a)
- Preparation of ORDER FOR EXPUNGEMENT
- Prepare Certified Mail Green cards for documents to be served on law enforcement and court.
- Preparation of statement to provide legal services;
- Preparation of filing letter to client with proposed Order for hearing and Order for Expungement;
- Preparation of filing letter to Court Expungement Unit
Follow up Court Order for hearing (takes approx 30 days)
- Preparation of letter with Order for hearing and proposed Order for Expungement to NJ Attorney General
Department of Law & Public Safety
Expungement Section- PO Box 080
Trenton, NJ 08625
- Preparation of letter with Order for hearing and proposed Order for Expungement to NJ Superintendent of State Police
Expungement Unit
River Road, PO Box 7068
West Trenton, NJ 08628
- Preparation of letter with Order for hearing and proposed Order for Expungement to County Prosecutor;
- Preparation of letter with Order for hearing and proposed Order for Expungement to Chief of Police;
- Preparation of letter to client with Order for hearing and proposed Order for Expungement to Municipal Court Administrator;
Preparation of CERTIFICATION OF SERVICE OF ORDER FOR HEARING
8. Review documents supplied by client and court;
9. Travel to Court if required;
10. Negotiations with the Prosecutor and Representation in case.
11. Follow up with Prosecutor
12. Prepare defense and mitigating factors;
If Expungement granted,
- Preparation of letter with signed Order for Expungement to
NJ Attorney General
Department of Law & Public Safety
Expungement Section- PO Box 080
Trenton, NJ 08625
- Preparation of letter with signed Order for Expungement to
NJ Superintendent of State Police
Expungement Unit
River Road, PO Box 7068
West Trenton, NJ 08628
- Preparation of letter with signed Order for Expungement to County Prosecutor;
- Preparation of letter with signed Order for Expungement to Chief of Police;
- Preparation of letter with signed Order for Expungement to Municipal Court Administrator;
13 Preparation of End of Case Letter and client questionnaire.
14. Free Brochures provided on other legal topics such as Worker's Comp, Wills, Personal Injury
15. Free subscription to monthly e-mail newsletter. Provide your email address.
16. Follow up telephone advice [If you call, provide the specific questions with the message. You can also fax your questions].
17. Invitation to client socials/ seminars and Community events via email.
18. Hold and maintain file for seven years in storage as free client service.
19. Free Magnet, Pen, T-shirt, soda/beer mug, foam soda can holder and estate planning book. Please ask Ken V or staff upon retaining the office.
The legal work includes research, correspondence, preparation and drafting of pleadings or other legal documents, conferences in person and by telephone with you and with others, dictating and reviewing letters, negotiations, and any other related work or service to properly represent you in this matter. The Law Firm will provide legal representation through an attorney who is licensed to practice law in New Jersey.
ERASE/EXPUNGEMENT OF OLD ARRESTS details
We need:
c1- client name _____________________
type of offense x2 ___________________
x3 Date of Arrest ___________________
x1 N.J.S.A. 2C: Statute Arrested For [ex 2C: 35-1] __________________
x4 Original Indictment, Summons, or Complaint Number ______________
e. Petitioner's Date of Conviction or Date of Disposition __________
f. Court's Disposition of the Matter and Punishment Adopted, if Any
c4 Town of arrest ______________
c3 County of arrest _____________
Other details needed in Petition:
Petitioner herein who resides at _____________
2. Petitioner's date of birth is _______, Social Security Number is _________
This matter downgraded... [If matter was not downgraded, delete this line, & replace with: This was reviewed by the __________ Prosecutor]
6. On ______, the Honorable ___________ found Defendant guilty of the following offense: ________________________.
c1 was fined _____, costs of ______ and ______.
Once filed, the Superior Court will set a hearing within 35-60 days.
As required under the statute, the attorney for the applicant must serve a copy of the Petition Order for hearing and supporting documents on the following people, Att: Expungement Unit:
1.) Superintendent of State Police
2.) Attorney General
3.) County Prosecutor of the county where the court is located
4.) The Chief of Police where the event took place
5.) The chief law enforcement officer of any law enforcement agency which participated in the arrest
6.) The warden of any institution where the petitioner was confined and
7.) If the disposition was made by a municipal court, upon the municipal court which heard the case.
Our Computer Prints:
1. Verified Petition for Expungement
2. Statement to Accompany Petition
3. Order for Hearing - Court will fill in date
4. Letter to Expungement Unit - w/ Petition, Order for Hearing and Prop. Order for Expungement
5. Letter to Law Enforcement Groups - w/ Petition, Order for Hearing and Proposed Order for Expungement
6. Cert. of Service
7. Mailing Cert. of Service
8. Order for Expungement
9. Letter to Law Enforcement w/ signed Order for Expungement
We call Superior Court and confirm address for Expungement Unit.
Using Letter 4., We Mail to Expungement Unit-
Orig. and one Petition
Statement to Accompany Petition
Order for Hearing
Prop. Order for Expungement
Check for $52.50
2 self-addressed stamped envelopes
Court will sign Order and mail back stamped filed 1, 2 & 3.
Using Letter 5 to Law Enforcement.-
We need to prepare copies and envelopes to Law Enforcement.
Prepare 4 address labels each for
1. State Police [no name of person needed]
2. Attorney General [no name of person needed]
3. County Prosecutor [no name of person needed]
4. Town Chief of Police [no name of person needed] ex. Edison Police Chief- Put name of town first
5. Town Municipal Court Administrator [no name of person needed] ex. Metuchen Court Administrator
6. Probation Department but only if person was on Probation, PTI, or conditional discharge.
7. Any other entity the court tells us to notify.
New Jersey Attorney General Division of State Police
Department of Law & Public Safety P.O. Box 7068
P.O. Box 080 West Trenton, NJ 08628
Trenton, NJ 08625
We need to make extra copies of labels because after Order for Expungement is signed we need to mail to all law enforcement.
We set up letters with enclosures and mail. With a pen we handwrite under address label on non window envelope, “Expungement Unit.”
We hand write the date mailed and send to these Law Enforcement the following -Petition and Verification.
-Order for Hearing
-Proposed Order
When all the green cert. mail cards come in we put date mailed to Law Enforcement. on form 6 (Cert.) and mail to Court .
We make copies of cert. mail green cards and letter before mailing out original green cards to court.
We call Expungement Unit in 7 days to confirm they received green cards and no need to appear on hearing date.
Court will mail signed Order for Expungement to us.
We need to send Form 9. to all Law Enforcement. Regular mail, Att: Expungement
Unit:. cc: w/o Order to Expungement Unit
cc: w/ copy to client
4. Other Legal Services. We provide representation only on the charges/tickets/offenses you provided to us at the initial consultation. The Law Firm does not guarantee Kenneth Vercammen will be the hearing attorney. You and the Law Firm may make additional agreements to provide for legal services not covered by the Agreement. Without such agreements, the Law Firm is not required to do any additional work or any of the following:
(a) Provide any legal services after appearance at the trial court;
(b) File any Motions or Briefs not set forth on page 1
We recommend after the Order for Expungement is signed by the Judge that you to send a copy of the Order for Expungement to the police by Certified Mail.
(c) Appeal any decisions of the trial court or make additional appearances after appearing in Court;
(d) provide other legal services or advice not listed on page 1-3; or
(e) Represent you in any other court or Tribunal
5. Costs. In addition to legal fees, you must pay the following costs and expenses if needed: costs for discovery and police reports, court costs, subpoena fees, and any other necessary expenses in this matter.
6. Your Responsibility- Please read carefully and follow instructions to help us help you.
You must fully cooperate with the Law Firm and provide all information relevant to the issues involved in this matter. You must fill out the Interview Sheet accurately.
We highly recommend if the court grants your expungement to send a copy of the signed order to the attorney general, court and police department yourself by certified mail and request they send to you verification the records were erased/ expunged.
4. You must notify the Law Office and the court immediately if your address or phone numbers change.
5. Under the NJ Rules of Professional Conduct and Court Rules, we cannot send a letter of representation to the court until the Retainer is paid in full. All fees and requirements under this written retainer agreement and any other written documents must be complied with. You must also pay all bills as required by this Agreement. If you do not comply with these requirements, the Law Firm will not represent you. Failure to comply with all requirements shall permit the law office to withdraw its offer of representation. We always charge a fee of between $50 - $100 for bad checks.
7. No Guarantee. The Law Firm agrees to provide conscientious, competent and diligent services and at all times will seek to achieve solutions which are just and reasonable for you. However, because of the uncertainty of legal proceedings, the interpretation and changes in the law and many unknown factors, attorneys cannot and do not warrant, predict or guarantee results or the final outcome of any case. Your payment of the legal fee indicates you have read and agree to this Agreement. This is a non-refundable retainer/representation fee, pursuant to Superior Court decisions and New Jersey RPC.
2C:52-1. Definition of expungement a. Except as otherwise provided in this chapter, expungement shall mean the extraction and isolation of all records on file within any court, detention or correctional facility, law enforcement or criminal justice agency concerning a person's detection, apprehension, arrest, detention, trial or disposition of an offense within the criminal justice system.
b. Expunged records shall include complaints, warrants, arrests, commitments, processing records, fingerprints, photographs, index cards, "rap sheets" and judicial docket records.
L.1979, c. 178, s. 108, eff. Sept. 1, 1979.
2C:52-2. Indictable offenses 2C:52-2. Indictable Offenses.
a. In all cases, except as herein provided, wherein a person has been convicted of a crime under the laws of this State and who has not been convicted of any prior or subsequent crime, whether within this State or any other jurisdiction, and has not been adjudged a disorderly person or petty disorderly person on more than two occasions may, after the expiration of a period of 10 years from the date of his conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later, present a duly verified petition as provided in section 2C:52-7 to the Superior Court in the county in which the conviction was entered praying that such conviction and all records and information pertaining thereto be expunged.
Although subsequent convictions for no more than two disorderly or petty disorderly offenses shall not be an absolute bar to relief, the nature of those conviction or convictions and the circumstances surrounding them shall be considered by the court and may be a basis for denial of relief if they or either of them constitute a continuation of the type of unlawful activity embodied in the criminal conviction for which expungement is sought.
b. Records of conviction pursuant to statutes repealed by this Code for the crimes of murder, manslaughter, treason, anarchy, kidnapping, rape, forcible sodomy, arson, perjury, false swearing, robbery, embracery, or a conspiracy or any attempt to commit any of the foregoing, or aiding, assisting or concealing persons accused of the foregoing crimes, shall not be expunged.
Records of conviction for the following crimes specified in the New Jersey Code of Criminal Justice shall not be subject to expungement: Section 2C:11-1 et seq. (Criminal Homicide), except death by auto as specified in section 2C:11-5; section 2C:13-1 (Kidnapping); section 2C:13-6 (Luring or Enticing); section 2C:14-2 (Aggravated Sexual Assault); section 2C:14-3a (Aggravated Criminal Sexual Contact); if the victim is a minor, section 2C:14-3b (Criminal Sexual Contact); if the victim is a minor and the offender is not the parent of the victim, section 2C:13-2 (Criminal Restraint) or section 2C:13-3 (False Imprisonment); section 2C:15-1 (Robbery); section 2C:17-1 (Arson and Related Offenses); section 2C:24-4a. (Endangering the welfare of a child by engaging in sexual conduct which would impair or debauch the morals of the child); section 2C:24-4b(4) (Endangering the welfare of a child); section 2C:28-1 (Perjury); section 2C:28-2 (False Swearing) and conspiracies or attempts to commit such crimes.
Records of conviction for any crime committed by a person holding any public office, position or employment, elective or appointive, under the government of this State or any agency or political subdivision thereof and any conspiracy or attempt to commit such a crime shall not be subject to expungement if the crime involved or touched such office, position or employment.
c. In the case of conviction for the sale or distribution of a controlled dangerous substance or possession thereof with intent to sell, expungement shall be denied except where the crimes relate to:
(1) Marijuana, where the total quantity sold, distributed or possessed with intent to sell was 25 grams or less, or
(2) Hashish, where the total quantity sold, distributed or possessed with intent to sell was five grams or less.
d. In the case of a State licensed physician or podiatrist convicted of an offense involving drugs or alcohol or pursuant to section 14 or 15 of P.L.1989, c.300 (C.2C:21-20 or 2C:21-4.1), the court shall notify the State Board of Medical Examiners upon receipt of a petition for expungement of the conviction and records and information pertaining thereto.
Amended 1989,c.300,s.23; 1993,c.301; 1994,c.133,s.6.
2C:52-3. Disorderly persons offenses and petty disorderly persons offenses Any person convicted of a disorderly persons offense or petty disorderly persons offense under the laws of this State who has not been convicted of any prior or subsequent crime, whether within this State or any other jurisdiction, or of another three disorderly persons or petty disorderly persons offenses, may, after the expiration of a period of 5 years from the date of his conviction, payment of fine, satisfactory completion of probation or release from incarceration, whichever is later, present a duly verified petition as provided in section 2C:52-7 hereof to the Superior Court in the county in which the conviction was entered praying that such conviction and all records and information pertaining thereto be expunged.
L.1979, c. 178, s. 110, eff. Sept. 1, 1979. Amended by L.1981, c. 290, s. 43, eff. Sept. 24, 1981.
2C:52-4. Ordinances In all cases wherein a person has been found guilty of violating a municipal ordinance of any governmental entity of this State and who has not been convicted of any prior or subsequent crime, whether within this State or any other jurisdiction, and who has not been adjudged a disorderly person or petty disorderly person on more than two occasions, may, after the expiration of a period of 2 years from the date of his conviction, payment of fine, satisfactory completion of probation or release from incarceration, whichever is later, present a duly verified petition as provided in section 2C:52-7 herein to the Superior Court in the county in which the violation occurred praying that such conviction and all records and information pertaining thereto be expunged.
L.1979, c. 178, s. 111, eff. Sept. 1, 1979.
2C:52-4.1. Juvenile delinquent; expungement of adjudications and charges a. Any person adjudged a juvenile delinquent may have such adjudication expunged as follows:
(1) Pursuant to N.J.S. 2C:52-2, if the act committed by the juvenile would have constituted a crime if committed by an adult;
(2) Pursuant to N.J.S. 2C:52-3, if the act committed by the juvenile would have constituted a disorderly or petty disorderly persons offense if committed by an adult; or
(3) Pursuant to N.J.S. 2C:52-4, if the act committed by the juvenile would have constituted an ordinance violation if committed by an adult.
For purposes of expungement, any act which resulted in a juvenile being adjudged a delinquent shall be classified as if that act had been committed by an adult.
b. Additionally, any person who has been adjudged a juvenile delinquent may have his entire record of delinquency adjudications expunged if:
(1) Five years have elapsed since the final discharge of the person from legal custody or supervision or 5 years have elapsed after the entry of any other court order not involving custody or supervision;
(2) He has not been convicted of a crime, or a disorderly or petty disorderly persons offense, or adjudged a delinquent, or in need of supervision, during the 5 years prior to the filing the petition, and no proceeding or complaint is pending seeking such a conviction or adjudication;
(3) He was never adjudged a juvenile delinquent on the basis of an act which if committed by an adult would constitute a crime not subject to expungement under N.J.S. 2C:52-2;
(4) He has never had an adult conviction expunged; and
(5) He has never had adult criminal charges dismissed following completion of a supervisory treatment or other diversion program.
c. Any person who has been charged with an act of delinquency and against whom proceedings were dismissed may have the filing of those charges expunged pursuant to the provisions of N.J.S. 2C:52-6.
L.1980, c. 163, s. 1. Amended by L.1981, c. 290, s. 44, eff. Sept. 24, 1981.
2C:52-5. Expungement of records of young drug offenders Expungement of Records of Young Drug Offenders. Notwithstanding the provisions of sections 2C:52-2 and 2C:52-3, after a period of not less than one year following conviction, termination of probation or parole or discharge from custody, whichever is later, any person convicted of an offense under chapters 35 or 36 of this title for the possession or use of a controlled dangerous substance, convicted of violating P.L. 1955, c. 277, s. 3 (C. 2A:170-77.5), or convicted of violating P.L. 1962, c. 113, s. 1 (C. 2A:170-77.8), and who at the time of the offense was 21 years of age or younger, may apply to the Superior Court in the county wherein the matter was disposed of for the expungement of such person's conviction and all records pertaining thereto. The relief of expungement under this section shall be granted only if said person has not, prior to the time of hearing, violated any of the conditions of his probation or parole, albeit subsequent to discharge from probation or parole, has not been convicted of any previous or subsequent criminal act or any subsequent or previous violation of chapters 35 or 36 of this title or of P.L. 1955, c. 277, s. 3 (C. 2A:170-77.5) or of P.L. 1962, c. 113, s. 1 (C. 2A:170-77.8), or who has not had a prior or subsequent criminal matter dismissed because of acceptance into a supervisory treatment or other diversion program.
This section shall not apply to any person who has been convicted of the sale or distribution of a controlled dangerous substance or possession with the intent to sell any controlled dangerous substance except:
(1) Marihuana, where the total sold, distributed or possessed with intent to sell was 25 grams or less, or
(2) Hashish, where the total amount sold, distributed or possessed with intent to sell was 5 grams or less.
L. 1979, c. 178, s. 111; amended by L. 1987, c. 106, s. 16. 2C:52-6. Arrests not resulting in conviction a. In all cases, except as herein provided, wherein a person has been arrested or held to answer for a crime, disorderly persons offense, petty disorderly persons offense or municipal ordinance violation under the laws of this State or of any governmental entity thereof and against whom proceedings were dismissed, or who was acquitted, or who was discharged without a conviction or finding of guilt, may at any time following the disposition of proceedings, present a duly verified petition as provided in section 2C:52-7 to the Superior Court in the county in which the disposition occurred praying that records of such arrest and all records and information pertaining thereto be expunged.
b. Any person who has had charges dismissed against him pursuant to P.L.1970, c. 226, s. 27 (C. 24:21-27) or pursuant to a program of supervisory treatment, shall be barred from the relief provided in this section until 6 months after the entry of the order of dismissal.
c. Any person who has been arrested or held to answer for a crime shall be barred from the relief provided in this section where the dismissal, discharge, or acquittal resulted from a determination that the person was insane or lacked the mental capacity to commit the crime charged.
L.1979, c. 178, s. 113, eff. Sept. 1, 1979.
2C:52-7. Petition for expungement Every petition for expungement filed pursuant to this chapter shall be verified and include:
a. Petitioner's date of birth.
b. Petitioner's date of arrest.
c. The statute or statutes and offense or offenses for which petitioner was arrested and of which petitioner was convicted.
d. The original indictment, summons or complaint number.
e. Petitioner's date of conviction, or date of disposition of the matter if no conviction resulted.
f. The court's disposition of the matter and the punishment imposed, if any.
L.1979, c. 178, s. 114, eff. Sept. 1, 1979.
2C:52-8. Statements to accompany petition There shall be attached to a petition for expungement:
a. A statement with the affidavit or verification that there are no disorderly persons, petty disorderly persons or criminal charges pending against the petitioner at the time of filing of the petition for expungement.
b. In those instances where the petitioner is seeking the expungement of a criminal conviction, a statement with affidavit or verification that he has never been granted expungement, sealing or similar relief regarding a criminal conviction by any court in this State or other state or by any Federal court. "Sealing" refers to the relief previously granted pursuant to P.L.1973, c. 191 (C. 2A:85-15 et seq.).
c. In those instances where a person has received a dismissal of a criminal charge because of acceptance into a supervisory treatment or any other diversion program, a statement with affidavit or verification setting forth the nature of the original charge, the court of disposition and date of disposition.
L.1979, c. 178, s. 115, eff. Sept. 1, 1979.
2C:52-9. Order fixing time for hearing Upon the filing of a petition for relief pursuant to this chapter, the court shall, by order, fix a time not less than 35 nor more than 60 days thereafter for hearing of the matter.
L.1979, c. 178, s. 116, eff. Sept. 1, 1979.
2C:52-10. Service of petition and documents A copy of each petition, together with a copy of all supporting documents, shall be served pursuant to the rules of court upon the Superintendent of State Police; the Attorney General; the county prosecutor of the county wherein the court is located; the chief of police or other executive head of the police department of the municipality wherein the offense was committed; the chief law enforcement officer of any other law enforcement agency of this State which participated in the arrest of the individual; the superintendent or warden of any institution in which the petitioner was confined; and, if a disposition was made by a municipal court, upon the magistrate of that court. Service shall be made within 5 days from the date of the order setting the date for the hearing upon the matter.
L.1979, c. 178, s. 117, eff. Sept. 1, 1979.
2C:52-11. Order expungement where no objection prior to hearing If, prior to the hearing, there is no objection from those law enforcement agencies notified or from those offices or agencies which are required to be served under 2C:52-10, and no reason, as provided in section 2C:52-14, appears to the contrary, the court may, without a hearing, grant an order directing the clerk of the court and all relevant criminal justice and law enforcement agencies to expunge records of said disposition including evidence of arrest, detention, conviction and proceedings related thereto.
L.1979, c. 178, s. 118, eff. Sept. 1, 1979.
2C:52-12. Denial of relief although no objection entered In the event that none of the persons or agencies required to be noticed under 2C:52-10 has entered any objection to the relief being sought, the court may nevertheless deny the relief sought if it concludes that petitioner is not entitled to relief for the reasons provided in section 2C:52-14.
L.1979, c. 178, s. 119, eff. Sept. 1, 1979.
2C:52-13. When hearing on petition for expungement shall not be held No petition for relief made pursuant to this section shall be heard by any court if the petitioner, at the time of filing or date of hearing, has a charge or charges pending against him which allege the commission of a crime, disorderly persons offense or petty disorderly persons offense. Such petition shall not be heard until such times as all pending criminal and or disorderly persons charges are adjudicated to finality.
L.1979, c. 178, s. 120, eff. Sept. 1, 1979.
2C:52-14. Grounds for denial of relief A petition for expungement filed pursuant to this chapter shall be denied when:
a. Any statutory prerequisite, including any provision of this chapter, is not fulfilled or there is any other statutory basis for denying relief.
b. The need for the availability of the records outweighs the desirability of having a person freed from any disabilities as otherwise provided in this chapter. An application may be denied under this subsection only following objection of a party given notice pursuant to 2C:52-10 and the burden of asserting such grounds shall be on the objector.
c. In connection with a petition under section 2C:52-6, the acquittal, discharge or dismissal of charges resulted from a plea bargaining agreement involving the conviction of other charges. This bar, however, shall not apply once the conviction is itself expunged.
d. The arrest or conviction sought to be expunged is, at the time of hearing, the subject matter of civil litigation between the petitioner or his legal representative and the State, any governmental entity thereof or any State agency and the representatives or employees of any such body.
e. A person has had a previous criminal conviction expunged regardless of the lapse of time between the prior expungement, or sealing under prior law, and the present petition. This provision shall not apply:
(1) When the person is seeking the expungement of a municipal ordinance violation or,
(2) When the person is seeking the expungement of records pursuant to section 2C:52-6.
f. The person seeking the relief of expungement of a conviction for a disorderly persons, petty disorderly persons, or criminal offense has prior to or subsequent to said conviction been granted the dismissal of criminal charges following completion of a supervisory treatment or other diversion program.
L.1979, c. 178, s. 121, eff. Sept. 1, 1979.
2C:52-15. Records to be removed; control If an order of expungement of records of arrest or conviction under this chapter is granted by the court, all the records specified in said order shall be removed from the files of the agencies which have been noticed of the pendency of petitioner's motion and which are, by the provisions of this chapter, entitled to notice, and shall be placed in the control of a person who has been designated by the head of each such agency which, at the time of the hearing, possesses said records. That designated person shall, except as otherwise provided in this chapter, insure that such records or the information contained therein are not released for any reason and are not utilized or referred to for any purpose. In response to requests for information or records of the person who was arrested or convicted, all noticed officers, departments and agencies shall reply, with respect to the arrest, conviction or related proceedings which are the subject of the order, that there is no record information.
L.1979, c. 178, s. 122, eff. Sept. 1, 1979.
2C:52-16. Expunged record including names of persons other than petitioner Any record or file which is maintained by a judicial or law enforcement agency, or agency in the criminal justice system, which is the subject of an order of expungement which includes the name or names of persons other than that of the petitioner need not be isolated from the general files of the agency retaining same if the other persons named in said record or file have not been granted an order of expungement of said record, provided that a copy of the record shall be given to the person designated in 2C:52-15 and the original shall remain in the agency's general files with the petitioner's name and other personal identifiers obliterated and deleted.
L.1979, c. 178, s. 123, eff. Sept. 1, 1979.
2C:52-17. Use of expunged records by agencies on pending petition for expungement Expunged records may be used by the agencies that possess same to ascertain whether a person has had prior conviction expunged, or sealed under prior law, when the agency possessing the record is noticed of a pending petition for the expungement of a conviction. Any such agency may supply information to the court wherein the motion is pending and to the other parties who are entitled to notice pursuant to 2C:52-10.
L.1979, c. 178, s. 124, eff. Sept. 1, 1979 2C:52-18. Supplying information to violent crimes compensation board Information contained in expunged records may be supplied to the Violent Crimes Compensation Board, in conjunction with any claim which has been filed with said board.
L.1979, c. 178, s. 125, eff. Sept. 1, 1979.
2C:52-19. Order of superior court permitting inspection of records or release of information; limitations Inspection of the files and records, or release of the information contained therein, which are the subject of an order of expungement, or sealing under prior law, may be permitted by the Superior Court upon motion for good cause shown and compelling need based on specific facts. The motion or any order granted pursuant thereto shall specify the person or persons to whom the records and information are to be shown and the purpose for which they are to be utilized. Leave to inspect shall be granted by the court only in those instances where the subject matter of the records of arrest or conviction is the object of litigation or judicial proceedings. Such records may not be inspected or utilized in any subsequent civil or criminal proceeding for the purposes of impeachment or otherwise but may be used for purposes of sentencing on a subsequent offense after guilt has been established.
L.1979, c. 178, s. 126, eff. Sept. 1, 1979.
2C:52-20. Use of expunged records in conjunction with supervisory treatment or diversion programs Expunged records may be used by any judge in determining whether to grant or deny the person's application for acceptance into a supervisory treatment or diversion program for subsequent charges. Any expunged records which are possessed by any law enforcement agency may be supplied to the Attorney General, any county prosecutor or judge of this State when same are requested and are to be used for the purpose of determining whether or not to accept a person into a supervisory treatment or diversion program for subsequent charges.
L.1979, c. 178, s. 127, eff. Sept. 1, 1979. 2C:52-21. Use of expunged records in conjunction with setting bail, presentence report or sentencing Expunged records, or sealed records under prior law, of prior arrests or convictions shall be provided to any judge, county prosecutor, probation department or the Attorney General when same are requested for use in conjunction with a bail hearing or for the preparation of a persistence report or for purpose of sentencing.
L.1979, c. 178, s. 128, eff. Sept. 1, 1979.
2C:52-22. Use of expunged records by parole board Expunged records, or sealed records under prior law, of prior disorderly persons, petty disorderly persons and criminal convictions shall be provided to the Parole Board when same are requested for the purpose of evaluating the granting of parole to the person who is the subject of said records. Such sealed or expunged records may be used by the Parole Board in the same manner and given the same weight in its considerations as if the records had not been expunged or sealed.
L.1979, c. 178, s. 129, eff. Sept. 1, 1979.
2C:52-23. Use of expunged records by department of corrections Expunged records, and records sealed under prior law, shall be provided to the Department of Corrections for its use solely in the classification, evaluation and assignment to correctional and penal institutions of persons placed in its custody.
L.1979, c. 178, s. 130, eff. Sept. 1, 1979. 2C:52-24. County prosecutor's obligation to ascertain propriety of petition Notwithstanding the notice requirements provided herein, it shall be the obligation of the county prosecutor of the county wherein any petition for expungement is filed to verify the accuracy of the allegations contained in the petition for expungement and to bring to the court's attention any facts which may be a bar to, or which may make inappropriate the granting of, such relief. If no disabling, adverse or relevant information is ascertained other than that as included in the petitioner's affidavit, such facts shall be communicated by the prosecutor to the hearing judge.
L.1979, c. 178, s. 131, eff. Sept. 1, 1979.
2C:52-25. Retroactive application This chapter shall apply to arrests and convictions which occurred prior to, and which occur subsequent to, the effective date of this act.
L.1979, c. 178, s. 132, eff. Sept. 1, 1979.
2C:52-26. Vacating of orders of sealing; time; basis If, within 5 years of the entry of an expungement order, any party to whom notice is required to be given pursuant to section 2C:52-10 notifies the court which issued the order that at the time of the petition or hearing there were criminal, disorderly persons or petty disorderly persons charges pending against the person to whom the court granted such order, which charges were not revealed to the court at the time of hearing of the original motion or that there was some other statutory disqualification, said court shall vacate the expungement order in question and reconsider the original motion in conjunction with the previously undisclosed information.
L.1979, c. 178, s. 133, eff. Sept. 1, 1979. 2C:52-27. Effect of expungement Unless otherwise provided by law, if an order of expungement is granted, the arrest, conviction and any proceedings related thereto shall be deemed not to have occurred, and the petitioner may answer any questions relating to their occurrence accordingly, except as follows:
a. The fact of an expungement, sealing or similar relief shall be disclosed as provided in section 2C:52-8b.
b. The fact of an expungement of prior charges which were dismissed because of the person's acceptance into and successful completion of a supervisory treatment or other diversion program shall be disclosed by said person to any judge who is determining the propriety of accepting said person into a supervisory treatment or other diversion program for subsequent criminal charges; and
c. Information divulged on expunged records shall be revealed by a petitioner seeking employment within the judicial branch or with a law enforcement or corrections agency and such information shall continue to provide a disability as otherwise provided by law.
L.1979, c. 178, s. 134, eff. Sept. 1, 1979. Amended by L.1981, c. 290, s. 45, eff. Sept. 24, 1981.
2C:52-27.1 Petition to rescind order of debarment for health care claims fraud.
5. a. If an order of expungement of records of conviction under the provisions of chapter 52 of Title 2C of the New Jersey Statutes is granted by the court to a person convicted of health care claims fraud in which the court had ordered the offender's professional license be forfeited and the person be forever barred from the practice of the profession pursuant to paragraph (1) of subsection a. of section 4 of P.L.1997, c.353 (C.2C:51-5), the person may petition the court for an order to rescind the court's order of debarment if the person can demonstrate that the person is sufficiently rehabilitated.
b.If an order to rescind the court's order of debarment is granted, the person granted the order may apply to be licensed to practice the profession from which the offender was barred.
L.1997,c.353,s.5.
2C:52-28. Motor vehicle offenses Nothing contained in this chapter shall apply to arrests or conviction for motor vehicle offenses contained in Title 39.
L.1979, c. 178, s. 135, eff. Sept. 1, 1979.
2C:52-29. Fee Any person who files an application pursuant to this chapter shall pay to the State Treasurer a fee of $30.00 to defer administrative costs in processing an application hereunder.
L.1979, c. 178, s. 136, eff. Sept. 1, 1979.
2C:52-30. Disclosure of expungement order Except as otherwise provided in this chapter, any person who reveals to another the existence of an arrest, conviction or related legal proceeding with knowledge that the records and information pertaining thereto have been expunged or sealed is a disorderly person. Notwithstanding the provisions of section 2C:43-3, the maximum fine which can be imposed for violation of this section is $200.00.
L.1979, c. 178, s. 137, eff. Sept. 1, 1979.
2C:52-31. Limitation Nothing provided in this chapter shall be interpreted to permit the expungement of records contained in the Controlled Dangerous Substances Registry created pursuant to P.L.1970, c. 227 (C. 26:2G-17 et seq.), or the registry created by the Administrative Office of the Courts pursuant to section 2C:43-21.
L.1979, c. 178, s. 138, eff. Sept. 1, 1979.
2C:52-32. Construction This chapter shall be construed with the primary objective of providing relief to the one-time offender who has led a life of rectitude and disassociated himself with unlawful activity, but not to create a system whereby periodic violators of the law or those who associate themselves with criminal activity have a regular means of expunging their police and criminal records.
L.1979, c. 178, s. 139, eff. Sept. 1, 1979.
Erase Criminal Arrests
Thousands of citizens in New Jersey over the past 20 years have been arrested for criminal, disorderly, and municipal ordinance offenses. They may include your neighbors, friends and loyal church goers. The police keep a record of all arrests and convictions, even if 20 years old. These "secrets of the past" will soon be open to anyone in New Jersey including credit agencies. Under a proposal by the New Jersey Attorney General, for a $15.00 fee, anybody could ask the state police for a person's criminal record, even arrests with not guilty findings. Allowing access to a person's old criminal conviction or arrest record could open the door for discrimination against someone who now is a productive, respected, and law abiding citizen.
Fortunately, if you are a law abiding citizen, you can now have old arrests or convictions erased from public records and police folders. Under NJSA 2C:52-1 et seq. past criminal convictions can be expunged' erased under certain instances. For example, if you were convicted or pleaded guilty to a disorderly person offense (misdemeanor type) more than 5 years ago, and have not been convicted of anything since, you can have your attorney petition to the Superior Court for an Expungement (Erase and removal) of your criminal record. If you plead guilty to a town ordinance (ex. - Seaside Heights Drinking in Public) you can petition for an Expungement after waiting two years. A Juvenile delinquent/guilty finding for a minor can also be expunged/erased under similar circumstances. In addition, minor drug arrests which resulted in first offender conditional discharge can be erased if one year has passed since termination of probation or conclusion of court proceedings.
Most importantly, arrests on frivolous complaints which did not result in a conviction or if charges were dismissed, can be expunged, without waiting. THE EXPUNGEMENT PETITION
You should contact an attorney experienced with handling expungements in the Superior Court. Your attorney will prepare an expungement petition which under state law must contain substantial background information, including:
a. Date of Birth and Social Security #
b. Date of Arrest
c. Statute Arrested For and Statute Convicted
d. Original Indictment, Summons, or Complaint Number
e. Petitioner's Date of Conviction or Date of Disposition
f. Court's Disposition of the Matter and Punishment Adopted, if Any
In addition, the Expungement Petition must have an affidavit that states that there are no charges pending and that the petitioner never previously received a prior expungement. The Expungement Petition is filed in the county where the offense took place, not where the defendant lives. Once filed, the Superior Court will set a hearing within 35-60 days.
As required under the statute, the attorney for the applicant must serve a copy of the Petition Order for hearing and supporting documents on the following people:
1. Superintendent of State Police 2. Attorney General 3. County Prosecutor of the county where the court is located 4. The Chief of Police where the event took place 5. The chief law enforcement officer of any law enforcement agency which participated in the arrest 6. The warden of any institution where the petitioner was confined, and 7. If the disposition was made by a municipal court, upon the municipal court which heard the case.
If you satisfy all other statutory requirements and there is no objection by the entities notified, the court will usually grant an order directing the clerk of the court and all relevant criminal justice and law enforcement agencies to expunge (remove) records of said disposition including evidence of arrest, detention, conviction, and proceedings.
There are additional pleadings which the applicant's attorney must prepare and file. If you have an old offense, it is important that you have the arrest expunged to keep your name and record clean.
Expungement statute was reviewed in recent cases
SUPERIOR COURT - CRIMINAL - FLAT FEE
AGREEMENT TO PROVIDE LEGAL SERVICE
Thank you for contacting Kenneth Vercammen & Associates, PC for representation in a criminal expungement Municipal Court matter.
1. Legal Services to be provided:
2. Flat fee: $1,200- $2,000
We will represent you at all stages from the initial interview to the first appearance in court, if needed. You represent that you have no other arrests or convictions other than the matters you wrote down on the interview sheet.
2. Fees. Fees can be paid by VISA, Master Card, American Express, check, money order or cash. Make checks payable to Kenneth Vercammen PC.
3. Representation/ What We will do for you. We will review and research necessary statutes and caselaw, contact the prosecutor, prepare defenses and determine mitigating factors. We agree to provide conscientious, competent and diligent services on the charges you provided us at the initial consultation. At all times we will seek to achieve solutions which are just and reasonable for you.
WHAT WE WILL DO......
1. Telephone consultation with client;
2. Office consultation with client;
3. Offer sound legal advice to client, plus access to our legal info website www.njlaws.com
4. Opening of file and client may have free client case folder, Municipal Court brochure, DMV points brochure, and Website brochure;
5. Review of necessary statutes and case law;
6. Preparation of VERIFIED PETITION FOR EXPUNGEMENT OF RECORD PURSUANT TO N.J.S.A. 2C:52-6(a)
7. Preparation of CERTIFICATION to Prosecutor;
STATEMENT TO ACCOMPANY PETITION
- Preparation of ORDER FOR HEARING FOR EXPUNGEMENT PURSUANT TO N.J.S.A. 2C:52-6(a)
- Preparation of ORDER FOR EXPUNGEMENT
- Prepare Certified Mail Green cards for documents to be served on law enforcement and court.
- Preparation of statement to provide legal services;
- Preparation of filing letter to client with proposed Order for hearing and Order for Expungement;
- Preparation of filing letter to Court Expungement Unit
Follow up Court Order for hearing (takes approx 30 days)
- Preparation of letter with Order for hearing and proposed Order for Expungement to NJ Attorney General
Department of Law & Public Safety
Expungement Section- PO Box 080
Trenton, NJ 08625
- Preparation of letter with Order for hearing and proposed Order for Expungement to NJ Superintendent of State Police
Expungement Unit
River Road, PO Box 7068
West Trenton, NJ 08628
- Preparation of letter with Order for hearing and proposed Order for Expungement to County Prosecutor;
- Preparation of letter with Order for hearing and proposed Order for Expungement to Chief of Police;
- Preparation of letter to client with Order for hearing and proposed Order for Expungement to Municipal Court Administrator;
Preparation of CERTIFICATION OF SERVICE OF ORDER FOR HEARING
8. Review documents supplied by client and court;
9. Travel to Court if required;
10. Negotiations with the Prosecutor and Representation in case.
11. Follow up with Prosecutor
12. Prepare defense and mitigating factors;
If Expungement granted,
- Preparation of letter with signed Order for Expungement to
NJ Attorney General
Department of Law & Public Safety
Expungement Section- PO Box 080
Trenton, NJ 08625
- Preparation of letter with signed Order for Expungement to
NJ Superintendent of State Police
Expungement Unit
River Road, PO Box 7068
West Trenton, NJ 08628
- Preparation of letter with signed Order for Expungement to County Prosecutor;
- Preparation of letter with signed Order for Expungement to Chief of Police;
- Preparation of letter with signed Order for Expungement to Municipal Court Administrator;
13 Preparation of End of Case Letter and client questionnaire.
14. Free Brochures provided on other legal topics such as Worker's Comp, Wills, Personal Injury
15. Free subscription to monthly e-mail newsletter. Provide your email address.
16. Follow up telephone advice [If you call, provide the specific questions with the message. You can also fax your questions].
17. Invitation to client socials/ seminars and Community events via email.
18. Hold and maintain file for seven years in storage as free client service.
19. Free Magnet, Pen, T-shirt, soda/beer mug, foam soda can holder and estate planning book. Please ask Ken V or staff upon retaining the office.
The legal work includes research, correspondence, preparation and drafting of pleadings or other legal documents, conferences in person and by telephone with you and with others, dictating and reviewing letters, negotiations, and any other related work or service to properly represent you in this matter. The Law Firm will provide legal representation through an attorney who is licensed to practice law in New Jersey.
ERASE/EXPUNGEMENT OF OLD ARRESTS details
We need:
c1- client name _____________________
type of offense x2 ___________________
x3 Date of Arrest ___________________
x1 N.J.S.A. 2C: Statute Arrested For [ex 2C: 35-1] __________________
x4 Original Indictment, Summons, or Complaint Number ______________
e. Petitioner's Date of Conviction or Date of Disposition __________
f. Court's Disposition of the Matter and Punishment Adopted, if Any
c4 Town of arrest ______________
c3 County of arrest _____________
Other details needed in Petition:
Petitioner herein who resides at _____________
2. Petitioner's date of birth is _______, Social Security Number is _________
This matter downgraded... [If matter was not downgraded, delete this line, & replace with: This was reviewed by the __________ Prosecutor]
6. On ______, the Honorable ___________ found Defendant guilty of the following offense: ________________________.
c1 was fined _____, costs of ______ and ______.
Once filed, the Superior Court will set a hearing within 35-60 days.
As required under the statute, the attorney for the applicant must serve a copy of the Petition Order for hearing and supporting documents on the following people, Att: Expungement Unit:
1.) Superintendent of State Police
2.) Attorney General
3.) County Prosecutor of the county where the court is located
4.) The Chief of Police where the event took place
5.) The chief law enforcement officer of any law enforcement agency which participated in the arrest
6.) The warden of any institution where the petitioner was confined and
7.) If the disposition was made by a municipal court, upon the municipal court which heard the case.
Our Computer Prints:
1. Verified Petition for Expungement
2. Statement to Accompany Petition
3. Order for Hearing - Court will fill in date
4. Letter to Expungement Unit - w/ Petition, Order for Hearing and Prop. Order for Expungement
5. Letter to Law Enforcement Groups - w/ Petition, Order for Hearing and Proposed Order for Expungement
6. Cert. of Service
7. Mailing Cert. of Service
8. Order for Expungement
9. Letter to Law Enforcement w/ signed Order for Expungement
We call Superior Court and confirm address for Expungement Unit.
Using Letter 4., We Mail to Expungement Unit-
Orig. and one Petition
Statement to Accompany Petition
Order for Hearing
Prop. Order for Expungement
Check for $52.50
2 self-addressed stamped envelopes
Court will sign Order and mail back stamped filed 1, 2 & 3.
Using Letter 5 to Law Enforcement.-
We need to prepare copies and envelopes to Law Enforcement.
Prepare 4 address labels each for
1. State Police [no name of person needed]
2. Attorney General [no name of person needed]
3. County Prosecutor [no name of person needed]
4. Town Chief of Police [no name of person needed] ex. Edison Police Chief- Put name of town first
5. Town Municipal Court Administrator [no name of person needed] ex. Metuchen Court Administrator
6. Probation Department but only if person was on Probation, PTI, or conditional discharge.
7. Any other entity the court tells us to notify.
New Jersey Attorney General Division of State Police
Department of Law & Public Safety P.O. Box 7068
P.O. Box 080 West Trenton, NJ 08628
Trenton, NJ 08625
We need to make extra copies of labels because after Order for Expungement is signed we need to mail to all law enforcement.
We set up letters with enclosures and mail. With a pen we handwrite under address label on non window envelope, “Expungement Unit.”
We hand write the date mailed and send to these Law Enforcement the following -Petition and Verification.
-Order for Hearing
-Proposed Order
When all the green cert. mail cards come in we put date mailed to Law Enforcement. on form 6 (Cert.) and mail to Court .
We make copies of cert. mail green cards and letter before mailing out original green cards to court.
We call Expungement Unit in 7 days to confirm they received green cards and no need to appear on hearing date.
Court will mail signed Order for Expungement to us.
We need to send Form 9. to all Law Enforcement. Regular mail, Att: Expungement
Unit:. cc: w/o Order to Expungement Unit
cc: w/ copy to client
4. Other Legal Services. We provide representation only on the charges/tickets/offenses you provided to us at the initial consultation. The Law Firm does not guarantee Kenneth Vercammen will be the hearing attorney. You and the Law Firm may make additional agreements to provide for legal services not covered by the Agreement. Without such agreements, the Law Firm is not required to do any additional work or any of the following:
(a) Provide any legal services after appearance at the trial court;
(b) File any Motions or Briefs not set forth on page 1
We recommend after the Order for Expungement is signed by the Judge that you to send a copy of the Order for Expungement to the police by Certified Mail.
(c) Appeal any decisions of the trial court or make additional appearances after appearing in Court;
(d) provide other legal services or advice not listed on page 1-3; or
(e) Represent you in any other court or Tribunal
5. Costs. In addition to legal fees, you must pay the following costs and expenses if needed: costs for discovery and police reports, court costs, subpoena fees, and any other necessary expenses in this matter.
6. Your Responsibility- Please read carefully and follow instructions to help us help you.
You must fully cooperate with the Law Firm and provide all information relevant to the issues involved in this matter. You must fill out the Interview Sheet accurately.
We highly recommend if the court grants your expungement to send a copy of the signed order to the attorney general, court and police department yourself by certified mail and request they send to you verification the records were erased/ expunged.
4. You must notify the Law Office and the court immediately if your address or phone numbers change.
5. Under the NJ Rules of Professional Conduct and Court Rules, we cannot send a letter of representation to the court until the Retainer is paid in full. All fees and requirements under this written retainer agreement and any other written documents must be complied with. You must also pay all bills as required by this Agreement. If you do not comply with these requirements, the Law Firm will not represent you. Failure to comply with all requirements shall permit the law office to withdraw its offer of representation. We always charge a fee of between $50 - $100 for bad checks.
7. No Guarantee. The Law Firm agrees to provide conscientious, competent and diligent services and at all times will seek to achieve solutions which are just and reasonable for you. However, because of the uncertainty of legal proceedings, the interpretation and changes in the law and many unknown factors, attorneys cannot and do not warrant, predict or guarantee results or the final outcome of any case. Your payment of the legal fee indicates you have read and agree to this Agreement. This is a non-refundable retainer/representation fee, pursuant to Superior Court decisions and New Jersey RPC.
2C:52-1. Definition of expungement a. Except as otherwise provided in this chapter, expungement shall mean the extraction and isolation of all records on file within any court, detention or correctional facility, law enforcement or criminal justice agency concerning a person's detection, apprehension, arrest, detention, trial or disposition of an offense within the criminal justice system.
b. Expunged records shall include complaints, warrants, arrests, commitments, processing records, fingerprints, photographs, index cards, "rap sheets" and judicial docket records.
L.1979, c. 178, s. 108, eff. Sept. 1, 1979.
2C:52-2. Indictable offenses 2C:52-2. Indictable Offenses.
a. In all cases, except as herein provided, wherein a person has been convicted of a crime under the laws of this State and who has not been convicted of any prior or subsequent crime, whether within this State or any other jurisdiction, and has not been adjudged a disorderly person or petty disorderly person on more than two occasions may, after the expiration of a period of 10 years from the date of his conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later, present a duly verified petition as provided in section 2C:52-7 to the Superior Court in the county in which the conviction was entered praying that such conviction and all records and information pertaining thereto be expunged.
Although subsequent convictions for no more than two disorderly or petty disorderly offenses shall not be an absolute bar to relief, the nature of those conviction or convictions and the circumstances surrounding them shall be considered by the court and may be a basis for denial of relief if they or either of them constitute a continuation of the type of unlawful activity embodied in the criminal conviction for which expungement is sought.
b. Records of conviction pursuant to statutes repealed by this Code for the crimes of murder, manslaughter, treason, anarchy, kidnapping, rape, forcible sodomy, arson, perjury, false swearing, robbery, embracery, or a conspiracy or any attempt to commit any of the foregoing, or aiding, assisting or concealing persons accused of the foregoing crimes, shall not be expunged.
Records of conviction for the following crimes specified in the New Jersey Code of Criminal Justice shall not be subject to expungement: Section 2C:11-1 et seq. (Criminal Homicide), except death by auto as specified in section 2C:11-5; section 2C:13-1 (Kidnapping); section 2C:13-6 (Luring or Enticing); section 2C:14-2 (Aggravated Sexual Assault); section 2C:14-3a (Aggravated Criminal Sexual Contact); if the victim is a minor, section 2C:14-3b (Criminal Sexual Contact); if the victim is a minor and the offender is not the parent of the victim, section 2C:13-2 (Criminal Restraint) or section 2C:13-3 (False Imprisonment); section 2C:15-1 (Robbery); section 2C:17-1 (Arson and Related Offenses); section 2C:24-4a. (Endangering the welfare of a child by engaging in sexual conduct which would impair or debauch the morals of the child); section 2C:24-4b(4) (Endangering the welfare of a child); section 2C:28-1 (Perjury); section 2C:28-2 (False Swearing) and conspiracies or attempts to commit such crimes.
Records of conviction for any crime committed by a person holding any public office, position or employment, elective or appointive, under the government of this State or any agency or political subdivision thereof and any conspiracy or attempt to commit such a crime shall not be subject to expungement if the crime involved or touched such office, position or employment.
c. In the case of conviction for the sale or distribution of a controlled dangerous substance or possession thereof with intent to sell, expungement shall be denied except where the crimes relate to:
(1) Marijuana, where the total quantity sold, distributed or possessed with intent to sell was 25 grams or less, or
(2) Hashish, where the total quantity sold, distributed or possessed with intent to sell was five grams or less.
d. In the case of a State licensed physician or podiatrist convicted of an offense involving drugs or alcohol or pursuant to section 14 or 15 of P.L.1989, c.300 (C.2C:21-20 or 2C:21-4.1), the court shall notify the State Board of Medical Examiners upon receipt of a petition for expungement of the conviction and records and information pertaining thereto.
Amended 1989,c.300,s.23; 1993,c.301; 1994,c.133,s.6.
2C:52-3. Disorderly persons offenses and petty disorderly persons offenses Any person convicted of a disorderly persons offense or petty disorderly persons offense under the laws of this State who has not been convicted of any prior or subsequent crime, whether within this State or any other jurisdiction, or of another three disorderly persons or petty disorderly persons offenses, may, after the expiration of a period of 5 years from the date of his conviction, payment of fine, satisfactory completion of probation or release from incarceration, whichever is later, present a duly verified petition as provided in section 2C:52-7 hereof to the Superior Court in the county in which the conviction was entered praying that such conviction and all records and information pertaining thereto be expunged.
L.1979, c. 178, s. 110, eff. Sept. 1, 1979. Amended by L.1981, c. 290, s. 43, eff. Sept. 24, 1981.
2C:52-4. Ordinances In all cases wherein a person has been found guilty of violating a municipal ordinance of any governmental entity of this State and who has not been convicted of any prior or subsequent crime, whether within this State or any other jurisdiction, and who has not been adjudged a disorderly person or petty disorderly person on more than two occasions, may, after the expiration of a period of 2 years from the date of his conviction, payment of fine, satisfactory completion of probation or release from incarceration, whichever is later, present a duly verified petition as provided in section 2C:52-7 herein to the Superior Court in the county in which the violation occurred praying that such conviction and all records and information pertaining thereto be expunged.
L.1979, c. 178, s. 111, eff. Sept. 1, 1979.
2C:52-4.1. Juvenile delinquent; expungement of adjudications and charges a. Any person adjudged a juvenile delinquent may have such adjudication expunged as follows:
(1) Pursuant to N.J.S. 2C:52-2, if the act committed by the juvenile would have constituted a crime if committed by an adult;
(2) Pursuant to N.J.S. 2C:52-3, if the act committed by the juvenile would have constituted a disorderly or petty disorderly persons offense if committed by an adult; or
(3) Pursuant to N.J.S. 2C:52-4, if the act committed by the juvenile would have constituted an ordinance violation if committed by an adult.
For purposes of expungement, any act which resulted in a juvenile being adjudged a delinquent shall be classified as if that act had been committed by an adult.
b. Additionally, any person who has been adjudged a juvenile delinquent may have his entire record of delinquency adjudications expunged if:
(1) Five years have elapsed since the final discharge of the person from legal custody or supervision or 5 years have elapsed after the entry of any other court order not involving custody or supervision;
(2) He has not been convicted of a crime, or a disorderly or petty disorderly persons offense, or adjudged a delinquent, or in need of supervision, during the 5 years prior to the filing the petition, and no proceeding or complaint is pending seeking such a conviction or adjudication;
(3) He was never adjudged a juvenile delinquent on the basis of an act which if committed by an adult would constitute a crime not subject to expungement under N.J.S. 2C:52-2;
(4) He has never had an adult conviction expunged; and
(5) He has never had adult criminal charges dismissed following completion of a supervisory treatment or other diversion program.
c. Any person who has been charged with an act of delinquency and against whom proceedings were dismissed may have the filing of those charges expunged pursuant to the provisions of N.J.S. 2C:52-6.
L.1980, c. 163, s. 1. Amended by L.1981, c. 290, s. 44, eff. Sept. 24, 1981.
2C:52-5. Expungement of records of young drug offenders Expungement of Records of Young Drug Offenders. Notwithstanding the provisions of sections 2C:52-2 and 2C:52-3, after a period of not less than one year following conviction, termination of probation or parole or discharge from custody, whichever is later, any person convicted of an offense under chapters 35 or 36 of this title for the possession or use of a controlled dangerous substance, convicted of violating P.L. 1955, c. 277, s. 3 (C. 2A:170-77.5), or convicted of violating P.L. 1962, c. 113, s. 1 (C. 2A:170-77.8), and who at the time of the offense was 21 years of age or younger, may apply to the Superior Court in the county wherein the matter was disposed of for the expungement of such person's conviction and all records pertaining thereto. The relief of expungement under this section shall be granted only if said person has not, prior to the time of hearing, violated any of the conditions of his probation or parole, albeit subsequent to discharge from probation or parole, has not been convicted of any previous or subsequent criminal act or any subsequent or previous violation of chapters 35 or 36 of this title or of P.L. 1955, c. 277, s. 3 (C. 2A:170-77.5) or of P.L. 1962, c. 113, s. 1 (C. 2A:170-77.8), or who has not had a prior or subsequent criminal matter dismissed because of acceptance into a supervisory treatment or other diversion program.
This section shall not apply to any person who has been convicted of the sale or distribution of a controlled dangerous substance or possession with the intent to sell any controlled dangerous substance except:
(1) Marihuana, where the total sold, distributed or possessed with intent to sell was 25 grams or less, or
(2) Hashish, where the total amount sold, distributed or possessed with intent to sell was 5 grams or less.
L. 1979, c. 178, s. 111; amended by L. 1987, c. 106, s. 16. 2C:52-6. Arrests not resulting in conviction a. In all cases, except as herein provided, wherein a person has been arrested or held to answer for a crime, disorderly persons offense, petty disorderly persons offense or municipal ordinance violation under the laws of this State or of any governmental entity thereof and against whom proceedings were dismissed, or who was acquitted, or who was discharged without a conviction or finding of guilt, may at any time following the disposition of proceedings, present a duly verified petition as provided in section 2C:52-7 to the Superior Court in the county in which the disposition occurred praying that records of such arrest and all records and information pertaining thereto be expunged.
b. Any person who has had charges dismissed against him pursuant to P.L.1970, c. 226, s. 27 (C. 24:21-27) or pursuant to a program of supervisory treatment, shall be barred from the relief provided in this section until 6 months after the entry of the order of dismissal.
c. Any person who has been arrested or held to answer for a crime shall be barred from the relief provided in this section where the dismissal, discharge, or acquittal resulted from a determination that the person was insane or lacked the mental capacity to commit the crime charged.
L.1979, c. 178, s. 113, eff. Sept. 1, 1979.
2C:52-7. Petition for expungement Every petition for expungement filed pursuant to this chapter shall be verified and include:
a. Petitioner's date of birth.
b. Petitioner's date of arrest.
c. The statute or statutes and offense or offenses for which petitioner was arrested and of which petitioner was convicted.
d. The original indictment, summons or complaint number.
e. Petitioner's date of conviction, or date of disposition of the matter if no conviction resulted.
f. The court's disposition of the matter and the punishment imposed, if any.
L.1979, c. 178, s. 114, eff. Sept. 1, 1979.
2C:52-8. Statements to accompany petition There shall be attached to a petition for expungement:
a. A statement with the affidavit or verification that there are no disorderly persons, petty disorderly persons or criminal charges pending against the petitioner at the time of filing of the petition for expungement.
b. In those instances where the petitioner is seeking the expungement of a criminal conviction, a statement with affidavit or verification that he has never been granted expungement, sealing or similar relief regarding a criminal conviction by any court in this State or other state or by any Federal court. "Sealing" refers to the relief previously granted pursuant to P.L.1973, c. 191 (C. 2A:85-15 et seq.).
c. In those instances where a person has received a dismissal of a criminal charge because of acceptance into a supervisory treatment or any other diversion program, a statement with affidavit or verification setting forth the nature of the original charge, the court of disposition and date of disposition.
L.1979, c. 178, s. 115, eff. Sept. 1, 1979.
2C:52-9. Order fixing time for hearing Upon the filing of a petition for relief pursuant to this chapter, the court shall, by order, fix a time not less than 35 nor more than 60 days thereafter for hearing of the matter.
L.1979, c. 178, s. 116, eff. Sept. 1, 1979.
2C:52-10. Service of petition and documents A copy of each petition, together with a copy of all supporting documents, shall be served pursuant to the rules of court upon the Superintendent of State Police; the Attorney General; the county prosecutor of the county wherein the court is located; the chief of police or other executive head of the police department of the municipality wherein the offense was committed; the chief law enforcement officer of any other law enforcement agency of this State which participated in the arrest of the individual; the superintendent or warden of any institution in which the petitioner was confined; and, if a disposition was made by a municipal court, upon the magistrate of that court. Service shall be made within 5 days from the date of the order setting the date for the hearing upon the matter.
L.1979, c. 178, s. 117, eff. Sept. 1, 1979.
2C:52-11. Order expungement where no objection prior to hearing If, prior to the hearing, there is no objection from those law enforcement agencies notified or from those offices or agencies which are required to be served under 2C:52-10, and no reason, as provided in section 2C:52-14, appears to the contrary, the court may, without a hearing, grant an order directing the clerk of the court and all relevant criminal justice and law enforcement agencies to expunge records of said disposition including evidence of arrest, detention, conviction and proceedings related thereto.
L.1979, c. 178, s. 118, eff. Sept. 1, 1979.
2C:52-12. Denial of relief although no objection entered In the event that none of the persons or agencies required to be noticed under 2C:52-10 has entered any objection to the relief being sought, the court may nevertheless deny the relief sought if it concludes that petitioner is not entitled to relief for the reasons provided in section 2C:52-14.
L.1979, c. 178, s. 119, eff. Sept. 1, 1979.
2C:52-13. When hearing on petition for expungement shall not be held No petition for relief made pursuant to this section shall be heard by any court if the petitioner, at the time of filing or date of hearing, has a charge or charges pending against him which allege the commission of a crime, disorderly persons offense or petty disorderly persons offense. Such petition shall not be heard until such times as all pending criminal and or disorderly persons charges are adjudicated to finality.
L.1979, c. 178, s. 120, eff. Sept. 1, 1979.
2C:52-14. Grounds for denial of relief A petition for expungement filed pursuant to this chapter shall be denied when:
a. Any statutory prerequisite, including any provision of this chapter, is not fulfilled or there is any other statutory basis for denying relief.
b. The need for the availability of the records outweighs the desirability of having a person freed from any disabilities as otherwise provided in this chapter. An application may be denied under this subsection only following objection of a party given notice pursuant to 2C:52-10 and the burden of asserting such grounds shall be on the objector.
c. In connection with a petition under section 2C:52-6, the acquittal, discharge or dismissal of charges resulted from a plea bargaining agreement involving the conviction of other charges. This bar, however, shall not apply once the conviction is itself expunged.
d. The arrest or conviction sought to be expunged is, at the time of hearing, the subject matter of civil litigation between the petitioner or his legal representative and the State, any governmental entity thereof or any State agency and the representatives or employees of any such body.
e. A person has had a previous criminal conviction expunged regardless of the lapse of time between the prior expungement, or sealing under prior law, and the present petition. This provision shall not apply:
(1) When the person is seeking the expungement of a municipal ordinance violation or,
(2) When the person is seeking the expungement of records pursuant to section 2C:52-6.
f. The person seeking the relief of expungement of a conviction for a disorderly persons, petty disorderly persons, or criminal offense has prior to or subsequent to said conviction been granted the dismissal of criminal charges following completion of a supervisory treatment or other diversion program.
L.1979, c. 178, s. 121, eff. Sept. 1, 1979.
2C:52-15. Records to be removed; control If an order of expungement of records of arrest or conviction under this chapter is granted by the court, all the records specified in said order shall be removed from the files of the agencies which have been noticed of the pendency of petitioner's motion and which are, by the provisions of this chapter, entitled to notice, and shall be placed in the control of a person who has been designated by the head of each such agency which, at the time of the hearing, possesses said records. That designated person shall, except as otherwise provided in this chapter, insure that such records or the information contained therein are not released for any reason and are not utilized or referred to for any purpose. In response to requests for information or records of the person who was arrested or convicted, all noticed officers, departments and agencies shall reply, with respect to the arrest, conviction or related proceedings which are the subject of the order, that there is no record information.
L.1979, c. 178, s. 122, eff. Sept. 1, 1979.
2C:52-16. Expunged record including names of persons other than petitioner Any record or file which is maintained by a judicial or law enforcement agency, or agency in the criminal justice system, which is the subject of an order of expungement which includes the name or names of persons other than that of the petitioner need not be isolated from the general files of the agency retaining same if the other persons named in said record or file have not been granted an order of expungement of said record, provided that a copy of the record shall be given to the person designated in 2C:52-15 and the original shall remain in the agency's general files with the petitioner's name and other personal identifiers obliterated and deleted.
L.1979, c. 178, s. 123, eff. Sept. 1, 1979.
2C:52-17. Use of expunged records by agencies on pending petition for expungement Expunged records may be used by the agencies that possess same to ascertain whether a person has had prior conviction expunged, or sealed under prior law, when the agency possessing the record is noticed of a pending petition for the expungement of a conviction. Any such agency may supply information to the court wherein the motion is pending and to the other parties who are entitled to notice pursuant to 2C:52-10.
L.1979, c. 178, s. 124, eff. Sept. 1, 1979 2C:52-18. Supplying information to violent crimes compensation board Information contained in expunged records may be supplied to the Violent Crimes Compensation Board, in conjunction with any claim which has been filed with said board.
L.1979, c. 178, s. 125, eff. Sept. 1, 1979.
2C:52-19. Order of superior court permitting inspection of records or release of information; limitations Inspection of the files and records, or release of the information contained therein, which are the subject of an order of expungement, or sealing under prior law, may be permitted by the Superior Court upon motion for good cause shown and compelling need based on specific facts. The motion or any order granted pursuant thereto shall specify the person or persons to whom the records and information are to be shown and the purpose for which they are to be utilized. Leave to inspect shall be granted by the court only in those instances where the subject matter of the records of arrest or conviction is the object of litigation or judicial proceedings. Such records may not be inspected or utilized in any subsequent civil or criminal proceeding for the purposes of impeachment or otherwise but may be used for purposes of sentencing on a subsequent offense after guilt has been established.
L.1979, c. 178, s. 126, eff. Sept. 1, 1979.
2C:52-20. Use of expunged records in conjunction with supervisory treatment or diversion programs Expunged records may be used by any judge in determining whether to grant or deny the person's application for acceptance into a supervisory treatment or diversion program for subsequent charges. Any expunged records which are possessed by any law enforcement agency may be supplied to the Attorney General, any county prosecutor or judge of this State when same are requested and are to be used for the purpose of determining whether or not to accept a person into a supervisory treatment or diversion program for subsequent charges.
L.1979, c. 178, s. 127, eff. Sept. 1, 1979. 2C:52-21. Use of expunged records in conjunction with setting bail, presentence report or sentencing Expunged records, or sealed records under prior law, of prior arrests or convictions shall be provided to any judge, county prosecutor, probation department or the Attorney General when same are requested for use in conjunction with a bail hearing or for the preparation of a persistence report or for purpose of sentencing.
L.1979, c. 178, s. 128, eff. Sept. 1, 1979.
2C:52-22. Use of expunged records by parole board Expunged records, or sealed records under prior law, of prior disorderly persons, petty disorderly persons and criminal convictions shall be provided to the Parole Board when same are requested for the purpose of evaluating the granting of parole to the person who is the subject of said records. Such sealed or expunged records may be used by the Parole Board in the same manner and given the same weight in its considerations as if the records had not been expunged or sealed.
L.1979, c. 178, s. 129, eff. Sept. 1, 1979.
2C:52-23. Use of expunged records by department of corrections Expunged records, and records sealed under prior law, shall be provided to the Department of Corrections for its use solely in the classification, evaluation and assignment to correctional and penal institutions of persons placed in its custody.
L.1979, c. 178, s. 130, eff. Sept. 1, 1979. 2C:52-24. County prosecutor's obligation to ascertain propriety of petition Notwithstanding the notice requirements provided herein, it shall be the obligation of the county prosecutor of the county wherein any petition for expungement is filed to verify the accuracy of the allegations contained in the petition for expungement and to bring to the court's attention any facts which may be a bar to, or which may make inappropriate the granting of, such relief. If no disabling, adverse or relevant information is ascertained other than that as included in the petitioner's affidavit, such facts shall be communicated by the prosecutor to the hearing judge.
L.1979, c. 178, s. 131, eff. Sept. 1, 1979.
2C:52-25. Retroactive application This chapter shall apply to arrests and convictions which occurred prior to, and which occur subsequent to, the effective date of this act.
L.1979, c. 178, s. 132, eff. Sept. 1, 1979.
2C:52-26. Vacating of orders of sealing; time; basis If, within 5 years of the entry of an expungement order, any party to whom notice is required to be given pursuant to section 2C:52-10 notifies the court which issued the order that at the time of the petition or hearing there were criminal, disorderly persons or petty disorderly persons charges pending against the person to whom the court granted such order, which charges were not revealed to the court at the time of hearing of the original motion or that there was some other statutory disqualification, said court shall vacate the expungement order in question and reconsider the original motion in conjunction with the previously undisclosed information.
L.1979, c. 178, s. 133, eff. Sept. 1, 1979. 2C:52-27. Effect of expungement Unless otherwise provided by law, if an order of expungement is granted, the arrest, conviction and any proceedings related thereto shall be deemed not to have occurred, and the petitioner may answer any questions relating to their occurrence accordingly, except as follows:
a. The fact of an expungement, sealing or similar relief shall be disclosed as provided in section 2C:52-8b.
b. The fact of an expungement of prior charges which were dismissed because of the person's acceptance into and successful completion of a supervisory treatment or other diversion program shall be disclosed by said person to any judge who is determining the propriety of accepting said person into a supervisory treatment or other diversion program for subsequent criminal charges; and
c. Information divulged on expunged records shall be revealed by a petitioner seeking employment within the judicial branch or with a law enforcement or corrections agency and such information shall continue to provide a disability as otherwise provided by law.
L.1979, c. 178, s. 134, eff. Sept. 1, 1979. Amended by L.1981, c. 290, s. 45, eff. Sept. 24, 1981.
2C:52-27.1 Petition to rescind order of debarment for health care claims fraud.
5. a. If an order of expungement of records of conviction under the provisions of chapter 52 of Title 2C of the New Jersey Statutes is granted by the court to a person convicted of health care claims fraud in which the court had ordered the offender's professional license be forfeited and the person be forever barred from the practice of the profession pursuant to paragraph (1) of subsection a. of section 4 of P.L.1997, c.353 (C.2C:51-5), the person may petition the court for an order to rescind the court's order of debarment if the person can demonstrate that the person is sufficiently rehabilitated.
b.If an order to rescind the court's order of debarment is granted, the person granted the order may apply to be licensed to practice the profession from which the offender was barred.
L.1997,c.353,s.5.
2C:52-28. Motor vehicle offenses Nothing contained in this chapter shall apply to arrests or conviction for motor vehicle offenses contained in Title 39.
L.1979, c. 178, s. 135, eff. Sept. 1, 1979.
2C:52-29. Fee Any person who files an application pursuant to this chapter shall pay to the State Treasurer a fee of $30.00 to defer administrative costs in processing an application hereunder.
L.1979, c. 178, s. 136, eff. Sept. 1, 1979.
2C:52-30. Disclosure of expungement order Except as otherwise provided in this chapter, any person who reveals to another the existence of an arrest, conviction or related legal proceeding with knowledge that the records and information pertaining thereto have been expunged or sealed is a disorderly person. Notwithstanding the provisions of section 2C:43-3, the maximum fine which can be imposed for violation of this section is $200.00.
L.1979, c. 178, s. 137, eff. Sept. 1, 1979.
2C:52-31. Limitation Nothing provided in this chapter shall be interpreted to permit the expungement of records contained in the Controlled Dangerous Substances Registry created pursuant to P.L.1970, c. 227 (C. 26:2G-17 et seq.), or the registry created by the Administrative Office of the Courts pursuant to section 2C:43-21.
L.1979, c. 178, s. 138, eff. Sept. 1, 1979.
2C:52-32. Construction This chapter shall be construed with the primary objective of providing relief to the one-time offender who has led a life of rectitude and disassociated himself with unlawful activity, but not to create a system whereby periodic violators of the law or those who associate themselves with criminal activity have a regular means of expunging their police and criminal records.
L.1979, c. 178, s. 139, eff. Sept. 1, 1979.
Arrest for a Criminal Violation and Right to Remain Silent " Miranda Rights
Arrest for a Criminal Violation and Right to Remain Silent " Miranda Rights"
Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey.
1. Tell The Police Officer or Detective that you wish to talk to your Lawyer. Repeat this request to every officer who speaks to you. 2. Identify yourself, if asked. If the incident is related to a motor vehicle, produce your license, registration, and insurance card. 3. Beyond identifying yourself, give no other information. Answer NO other questions. SIGN NOTHING. If you are asked any other questions, reply politely, "I would rather not discuss it². 4. Call your lawyer at the first opportunity. NOTE: If you are arrested for Drunk Driving in New Jersey, you must give breath samples before you call your Lawyer. You are not required to do field sobriety tests such as walking a straight line, Remember: Even a fish would not get caught if they kept their mouth closed. OJ remained silent and is playing golf today. [Copyright 1985-1986 Alan Marain]
The Fifth Amendment to the United States Constitution prohibits the use of involuntary statements and confessions at trial. The State bears the burden of proof in a motion to suppress a statement allegedly obtained in violation of the Miranda doctrine. New Jersey requires the higher standard of beyond a reasonable doubt when the court determines if Miranda has not been fully complied with. State v Yough 49 NJ 587, 600-601 (1967), State v Whittington 142 NJ Super. 45, 49-50 (App. Div. 1976), State v Flower 224 NJ Super. 208, 213 (Law Div 1987) aff'd per curiam 224 NJ Super. 90 (App. Div. 1988).
WHAT IS INTERROGATION? As set forth in NJ Practice , Vol. 32 Criminal Practice and Procedure (West 1998) Section 755, the United States Supreme Court in Rhode Island V Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) held that the term "interrogation" under Miranda refers not only to express questioning but also to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect. It is "an established principle of our federalist system" that states may afford "individual liberties more expansive than those afforded by the federal constitution." State v Novembrino 105 NJ 95, 144-145 (1987).
Generally, a statement given by a defendant is not admissible in a criminal case unless the court is satisfied beyond a reasonable doubt that the defendant was informed of his Miranda rights before giving the statement and "in light of all the circumstances attending the confession it was given voluntarily." State v Hampton 61 NJ 250, 272 (1972). What is at stake is ensuring the use of effective procedural safeguards to secure the right of the Fifth Amendment to the United States Constitution that " no person shall be.... compelled in any criminal case to be a witness against himself," which is now made applicable to state action by the Due Process Clause of the Fourteenth Amendment. However, once informed of his rights " a defendant may waive effectuation of these rights provided the waiver is made voluntarily, knowingly and intelligently." State v Flower 224 NJ Super. 208, 213 (Law Div 1987) aff'd per curiam 224 NJ Super. 90 (App. Div. 1988). citing Miranda v Arizona 384 US 436, 444, 86 S. Ct 1602, 1612, 16 L. Ed 2d 694 (1966); emphasis in Flower. In State v Flower 224 NJ Super. 208, 213 (Law Div 1987) aff'd per curiam 224 NJ Super. 90 (App. Div. 1988), the defendant had a low IQ and limited vocabulary. He gave confessions to police and a confession to DYFS. The court excluded the confession to the police, even though Miranda warnings were given and there was lack of coercion and an admitted waiver of rights by the defendant. The court concluded that since the Defendant could not understand his Miranda rights, he could not waive them. One cannot knowingly and intelligently waive a right that he cannot understand or appreciate. 224 NJ Super. at 216. The court also excluded confessions to a DYFS investigator on the same grounds since she was acting in a law enforcement capacity and failed to inform Defendant of his Miranda rights. Id at 220. Where it is charged that a confession was given under the influence of narcotics or during a withdrawal period, the central question of voluntariness remains the same, and the trial court must scrutinize all the pertinent facts attending the confession with particular focus on Defendant's demeanor, coherence, articulateness, capacity to full use of his faculties, his memory and his overall intelligence. State v Arcediano 371 F. Supp. 457 (D. NJ 1974); See also Wade v Yeager 245 F. Supp 62 (D. NJ 1964).
The State must prove beyond a reasonable doubt that the waiver was made knowingly and intelligently. If the suspect is intoxicated or under the influence of drugs to the point that he cannot understand his constitutional rights, then any waiver is void. If the suspect is suffering from a mental disability which renders him incapable of understanding his constitutional rights, then any waiver is void. The level of mental disability which would render a suspect incapable of understanding his constitutional rights is probably close to the point at which the suspect could be said to be incapable of managing his own affairs. Where circumstances cast doubt on knowing and intelligent quality of alleged waiver of right to counsel, there can be no waiver. State vs. Dickens 192 NJ Super. 290 (App. Div. 1983). Intoxication is grounds to suppress statements. See e.g. Common vs. Brithsher 563 A.2d 502, App granted 575 A.2d 107. (If Defendant's intoxication combined to render him incapable of understanding Miranda warning waiver of Miranda rights would be invalid); Common vs. Andel 477 A.2d 13 56 (1984); (Defendant's waiver of his Miranda rights was vitiated by his intoxication, his eyes glaring and had a strong odor of alcohol. Statements made by defendant while in custody should suppressed.) The court has always set high standards of proof for the waiver of constitutional rights Johnson vs. Zerbst 304 US 458 58 S. Court 1019, 82 Ed 146 (1938). In Common vs. Hosey 334 NE 2d 44 ( Mass 75 ) the court reversed and remanded a matter where tried judge allowed admission of defendant's statement to police where defendant was extremely high, extremely emotional and detected from reality. Due process requires not only that a conviction not be based on an involuntary confession but also that a trial court hold what has become known as a Jackson Denno hearing when a defendant contests the voluntariness of his statement. Miller vs. Dugger 838 F. 2d 1530 ( 11 Cir. 1988) cert. den 486 US 1061. 1085.S. Ct. 2832 100 L. Ed 2d 933 (1988). At the Jackson- Denno hearing and at oral argument, we will explain through cross-examination and witnesses the involuntary nature of any statements the state intends to produce.
CALL KENNETH A. VERCAMMEN, ESQ. 732-572-0500 For an Appointment
About Kenneth Vercammen:
Kenneth Vercammen is a Litigation Attorney in Edison, NJ, approximately 17 miles north of Princeton. He often lectures for the American Bar Association and New Jersey State Bar Association on personal injury, criminal / municipal court law and practices to improve service to clients. He has published 125 articles in national and New Jersey publications on trial and litigation topics. He has served as a Special Acting Prosecutor in seven different cities and towns in New Jersey.
In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey several times each week on many personal injury matters, Municipal Court trials, and contested administrative law hearings.
Consequences of a Criminal Guilty Plea
1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s)
2. Do you understand that if you plead guilty:
a. You will have a criminal record
b. You may go to Jail or Prison.
c. You will have to pay Fines and Court Costs.
3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail.
4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing.
5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution.
6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.
7. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.
8. You must wait 5-10 years to expunge a first offense. 2C:52-3
9. You could be put on Probation.
10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your driver's license for 6 months - 2years. You must pay a Law Enforcement Officers Training and Equipment Fund penalty of $30.
11. You may be required to do Community Service.
12. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty.
13. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction.
14. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation.
15. You lose the presumption against incarceration in future cases. 2C:44-1
16. You may lose your right to vote.
The defense of a person charged with a criminal offense is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of a criminal offense.
Jail for Crimes and Disorderly Conduct:
If someone pleads Guilty or is found Guilty of a criminal offense, the following is the statutory Prison/Jail terms.
NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years;
(2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years;
(3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years;
(4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months.
2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed:
a. (1) $200,000.00 when the conviction is of a crime of the first degree;
(2) $150,000.00 when the conviction is of a crime of the second degree;
b. (1) $15,000.00 when the conviction is of a crime of the third degree;
(2) $10,000.00 when the conviction is of a crime of the fourth degree;
c. $1,000.00, when the conviction is of a disorderly persons offense;
d. $500.00, when the conviction is of a petty disorderly persons offense;
If facing any criminal charge, retain an experienced attorney immediately to determine you rights and obligations to the court. Current criminal charge researched by Kenneth Vercammen, Esq. 732-572-0500
Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey.
1. Tell The Police Officer or Detective that you wish to talk to your Lawyer. Repeat this request to every officer who speaks to you. 2. Identify yourself, if asked. If the incident is related to a motor vehicle, produce your license, registration, and insurance card. 3. Beyond identifying yourself, give no other information. Answer NO other questions. SIGN NOTHING. If you are asked any other questions, reply politely, "I would rather not discuss it². 4. Call your lawyer at the first opportunity. NOTE: If you are arrested for Drunk Driving in New Jersey, you must give breath samples before you call your Lawyer. You are not required to do field sobriety tests such as walking a straight line, Remember: Even a fish would not get caught if they kept their mouth closed. OJ remained silent and is playing golf today. [Copyright 1985-1986 Alan Marain]
The Fifth Amendment to the United States Constitution prohibits the use of involuntary statements and confessions at trial. The State bears the burden of proof in a motion to suppress a statement allegedly obtained in violation of the Miranda doctrine. New Jersey requires the higher standard of beyond a reasonable doubt when the court determines if Miranda has not been fully complied with. State v Yough 49 NJ 587, 600-601 (1967), State v Whittington 142 NJ Super. 45, 49-50 (App. Div. 1976), State v Flower 224 NJ Super. 208, 213 (Law Div 1987) aff'd per curiam 224 NJ Super. 90 (App. Div. 1988).
WHAT IS INTERROGATION? As set forth in NJ Practice , Vol. 32 Criminal Practice and Procedure (West 1998) Section 755, the United States Supreme Court in Rhode Island V Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) held that the term "interrogation" under Miranda refers not only to express questioning but also to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect. It is "an established principle of our federalist system" that states may afford "individual liberties more expansive than those afforded by the federal constitution." State v Novembrino 105 NJ 95, 144-145 (1987).
Generally, a statement given by a defendant is not admissible in a criminal case unless the court is satisfied beyond a reasonable doubt that the defendant was informed of his Miranda rights before giving the statement and "in light of all the circumstances attending the confession it was given voluntarily." State v Hampton 61 NJ 250, 272 (1972). What is at stake is ensuring the use of effective procedural safeguards to secure the right of the Fifth Amendment to the United States Constitution that " no person shall be.... compelled in any criminal case to be a witness against himself," which is now made applicable to state action by the Due Process Clause of the Fourteenth Amendment. However, once informed of his rights " a defendant may waive effectuation of these rights provided the waiver is made voluntarily, knowingly and intelligently." State v Flower 224 NJ Super. 208, 213 (Law Div 1987) aff'd per curiam 224 NJ Super. 90 (App. Div. 1988). citing Miranda v Arizona 384 US 436, 444, 86 S. Ct 1602, 1612, 16 L. Ed 2d 694 (1966); emphasis in Flower. In State v Flower 224 NJ Super. 208, 213 (Law Div 1987) aff'd per curiam 224 NJ Super. 90 (App. Div. 1988), the defendant had a low IQ and limited vocabulary. He gave confessions to police and a confession to DYFS. The court excluded the confession to the police, even though Miranda warnings were given and there was lack of coercion and an admitted waiver of rights by the defendant. The court concluded that since the Defendant could not understand his Miranda rights, he could not waive them. One cannot knowingly and intelligently waive a right that he cannot understand or appreciate. 224 NJ Super. at 216. The court also excluded confessions to a DYFS investigator on the same grounds since she was acting in a law enforcement capacity and failed to inform Defendant of his Miranda rights. Id at 220. Where it is charged that a confession was given under the influence of narcotics or during a withdrawal period, the central question of voluntariness remains the same, and the trial court must scrutinize all the pertinent facts attending the confession with particular focus on Defendant's demeanor, coherence, articulateness, capacity to full use of his faculties, his memory and his overall intelligence. State v Arcediano 371 F. Supp. 457 (D. NJ 1974); See also Wade v Yeager 245 F. Supp 62 (D. NJ 1964).
The State must prove beyond a reasonable doubt that the waiver was made knowingly and intelligently. If the suspect is intoxicated or under the influence of drugs to the point that he cannot understand his constitutional rights, then any waiver is void. If the suspect is suffering from a mental disability which renders him incapable of understanding his constitutional rights, then any waiver is void. The level of mental disability which would render a suspect incapable of understanding his constitutional rights is probably close to the point at which the suspect could be said to be incapable of managing his own affairs. Where circumstances cast doubt on knowing and intelligent quality of alleged waiver of right to counsel, there can be no waiver. State vs. Dickens 192 NJ Super. 290 (App. Div. 1983). Intoxication is grounds to suppress statements. See e.g. Common vs. Brithsher 563 A.2d 502, App granted 575 A.2d 107. (If Defendant's intoxication combined to render him incapable of understanding Miranda warning waiver of Miranda rights would be invalid); Common vs. Andel 477 A.2d 13 56 (1984); (Defendant's waiver of his Miranda rights was vitiated by his intoxication, his eyes glaring and had a strong odor of alcohol. Statements made by defendant while in custody should suppressed.) The court has always set high standards of proof for the waiver of constitutional rights Johnson vs. Zerbst 304 US 458 58 S. Court 1019, 82 Ed 146 (1938). In Common vs. Hosey 334 NE 2d 44 ( Mass 75 ) the court reversed and remanded a matter where tried judge allowed admission of defendant's statement to police where defendant was extremely high, extremely emotional and detected from reality. Due process requires not only that a conviction not be based on an involuntary confession but also that a trial court hold what has become known as a Jackson Denno hearing when a defendant contests the voluntariness of his statement. Miller vs. Dugger 838 F. 2d 1530 ( 11 Cir. 1988) cert. den 486 US 1061. 1085.S. Ct. 2832 100 L. Ed 2d 933 (1988). At the Jackson- Denno hearing and at oral argument, we will explain through cross-examination and witnesses the involuntary nature of any statements the state intends to produce.
CALL KENNETH A. VERCAMMEN, ESQ. 732-572-0500 For an Appointment
About Kenneth Vercammen:
Kenneth Vercammen is a Litigation Attorney in Edison, NJ, approximately 17 miles north of Princeton. He often lectures for the American Bar Association and New Jersey State Bar Association on personal injury, criminal / municipal court law and practices to improve service to clients. He has published 125 articles in national and New Jersey publications on trial and litigation topics. He has served as a Special Acting Prosecutor in seven different cities and towns in New Jersey.
In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey several times each week on many personal injury matters, Municipal Court trials, and contested administrative law hearings.
Consequences of a Criminal Guilty Plea
1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s)
2. Do you understand that if you plead guilty:
a. You will have a criminal record
b. You may go to Jail or Prison.
c. You will have to pay Fines and Court Costs.
3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail.
4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing.
5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution.
6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.
7. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.
8. You must wait 5-10 years to expunge a first offense. 2C:52-3
9. You could be put on Probation.
10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your driver's license for 6 months - 2years. You must pay a Law Enforcement Officers Training and Equipment Fund penalty of $30.
11. You may be required to do Community Service.
12. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty.
13. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction.
14. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation.
15. You lose the presumption against incarceration in future cases. 2C:44-1
16. You may lose your right to vote.
The defense of a person charged with a criminal offense is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of a criminal offense.
Jail for Crimes and Disorderly Conduct:
If someone pleads Guilty or is found Guilty of a criminal offense, the following is the statutory Prison/Jail terms.
NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years;
(2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years;
(3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years;
(4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months.
2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed:
a. (1) $200,000.00 when the conviction is of a crime of the first degree;
(2) $150,000.00 when the conviction is of a crime of the second degree;
b. (1) $15,000.00 when the conviction is of a crime of the third degree;
(2) $10,000.00 when the conviction is of a crime of the fourth degree;
c. $1,000.00, when the conviction is of a disorderly persons offense;
d. $500.00, when the conviction is of a petty disorderly persons offense;
If facing any criminal charge, retain an experienced attorney immediately to determine you rights and obligations to the court. Current criminal charge researched by Kenneth Vercammen, Esq. 732-572-0500
CONSTRUCTIVE POSSESSION OF DRUGS IN A CRIMINAL CASE
CONSTRUCTIVE POSSESSION OF DRUGS IN A CRIMINAL CASE
http://www.njlaws.com/constructive_possession.htm
Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey.
"For this offense the state must prove three material elements. First, it must be proved that the item is a controlled dangerous substance. Second, it must be proved that defendant either obtained or possessed the substance. Third it must be proved that defendant acted knowingly or intentionally." 33 N.J. Practice §521 p.475.
The state must prove that the defendant acted knowingly or intentionally. The state must prove that defendant knew the nature and character of the item, and it must prove that James's purpose in possessing the substance was to distribute it. 33 N.J. Practice §520 p.471 (1982).
Possession is the intentional control of an item accompanied by an awareness of its character. Constructive possession is when the defendant is aware of the substance and has an intention to exercise control over the substance. State v. Brown, 67 N.J. Super. 450, 455, 171 A. 2d 15, 18 (App. Div. 1961).
Joint possession is when people knowingly share control over the article. State v. Rajnai, 132 N.J. Super. 530, 536, 334 A. 2d 364, 367 (App. Div. 1975).
It is an offense to knowingly or intentionally obtain or possess a controlled dangerous substance. N.J.S.A. 24:21-20a. "The state must prove knowledge or intent on the part of the defendant. Knowledge means that the defendant was aware of the existence of the object and was aware of its character. Intent means it was the defendant's purpose to obtain or possess the item while being aware of its character. State v. McMenamin, 133 N.J. Super. 521, 524, 337 A. 2d 630, 631 (App. Div. 1975); State v. Brown, 67 N.J. Super. 450, 455, 171 A. 2d 15, 18 (App. Div. 1961).
Mere presence in a premises with other persons where controlled dangerous substances are found is not sufficient to justify an inference that a particular defendant was in sole or joint possession of the substance. State v. Sapp, 71 N.J. 476, 477, 366 A. 2d 334, 335 (1976), overruled on other grounds by State v. Brown, 80 N.J. 587, 404 A. 2d 1111 (1979).
The state must prove that the defendant was aware of the character of the substance to prove that the defendant acted with knowledge. State v. Reed, 34 N.J. 554, 557, 170 A. 2d 419, 421 (1961); State v. Rajnai, 132 N.J. Super. 530, 536, 334 A. 2d 364, 367 (App. Div. 1975).
http://www.njlaws.com/constructive_possession.htm
Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey.
"For this offense the state must prove three material elements. First, it must be proved that the item is a controlled dangerous substance. Second, it must be proved that defendant either obtained or possessed the substance. Third it must be proved that defendant acted knowingly or intentionally." 33 N.J. Practice §521 p.475.
The state must prove that the defendant acted knowingly or intentionally. The state must prove that defendant knew the nature and character of the item, and it must prove that James's purpose in possessing the substance was to distribute it. 33 N.J. Practice §520 p.471 (1982).
Possession is the intentional control of an item accompanied by an awareness of its character. Constructive possession is when the defendant is aware of the substance and has an intention to exercise control over the substance. State v. Brown, 67 N.J. Super. 450, 455, 171 A. 2d 15, 18 (App. Div. 1961).
Joint possession is when people knowingly share control over the article. State v. Rajnai, 132 N.J. Super. 530, 536, 334 A. 2d 364, 367 (App. Div. 1975).
It is an offense to knowingly or intentionally obtain or possess a controlled dangerous substance. N.J.S.A. 24:21-20a. "The state must prove knowledge or intent on the part of the defendant. Knowledge means that the defendant was aware of the existence of the object and was aware of its character. Intent means it was the defendant's purpose to obtain or possess the item while being aware of its character. State v. McMenamin, 133 N.J. Super. 521, 524, 337 A. 2d 630, 631 (App. Div. 1975); State v. Brown, 67 N.J. Super. 450, 455, 171 A. 2d 15, 18 (App. Div. 1961).
Mere presence in a premises with other persons where controlled dangerous substances are found is not sufficient to justify an inference that a particular defendant was in sole or joint possession of the substance. State v. Sapp, 71 N.J. 476, 477, 366 A. 2d 334, 335 (1976), overruled on other grounds by State v. Brown, 80 N.J. 587, 404 A. 2d 1111 (1979).
The state must prove that the defendant was aware of the character of the substance to prove that the defendant acted with knowledge. State v. Reed, 34 N.J. 554, 557, 170 A. 2d 419, 421 (1961); State v. Rajnai, 132 N.J. Super. 530, 536, 334 A. 2d 364, 367 (App. Div. 1975).
Possession with intent to Distribute 2C:35-5
Possession with intent to Distribute 2C:35-5
http://www.njlaws.com/possession_with_intent_to_distribute.htm
Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey.
If someone is Indicted for Possession of Drugs with Intent to Distribute, the Judge will read portions of the following to the Jury. They are called request to charge. Count of the indictment charges the defendant as follows: (Read Indictment)
The pertinent part of the statute (N.J.S.A. 2C:35-5)1 on which this indictment is based reads as follows:
Except as authorized by (statute), it shall be unlawful for any person knowingly or purposely ... to possess or have under his control with intent to ... distribute a controlled dangerous substance (or controlled substance analog).
2 The various kinds of substances are defined in another part of our statute. (Insert appropriate CDS, e.g., heroin, cocaine, etc.) is a dangerous substance prohibited by statute. (The defendant does not claim legal authorization, so the exceptions in the statute are not applicable in this case.) The statute, read together with the indictment, identifies the elements which the State must prove beyond a reasonable doubt to establish guilt of the defendant on this (count of the) indictment.
They are as follows:
1. The substance in evidence is (insert appropriate CDS or controlled substance analog).
2. The defendant possessed, or had under (his/her) control, S in evidence.
3. The defendant, when (he/she) possessed or had under (his/her) control S in evidence, had the intent to distribute S in evidence.
4. That the defendant acted knowingly or purposefully in possessing or having under (his/her) control with intent to distribute S in evidence.
[when it is alleged that a controlled substance analog was possessed with intent to distribute the following definition of controlled substance analog should be charged]:
In regard to the first element, a "controlled substance analog" is a substance which (1) has a chemical structure substantially similar to that of a controlled dangerous substance and (2) was specifically designed to produce an effect substantially similar to that of a controlled substance.3 In this case the indictment alleges that the defendant distributed which is an analog of the controlled dangerous substance . Thus, to establish this element the State must prove beyond a reasonable doubt that has a substantially similar chemical structure to the controlled dangerous substance and that was specifically designed to produce an effect substantially similar to the controlled dangerous substance.
In regard to the second element, that the defendant had under (his/her) control or possessed S in evidence, "possess" means (charge definition of possession). In regard to the third element, that the defendant had the intent to distribute S in evidence, "distribute" means the transfer, actual, constructive or attempted,4 from one person to another of a controlled dangerous substance (or controlled substance analog). It is not necessary that the drugs be transferred in exchange for payment or promise of payment of money or anything of value.
5 "Intent" means a purpose to do something, a resolution to do a particular act or accomplish a certain thing. Intent is a state of mind, and it is very rare that intent is proven by witnesses who can testify that an accused said (he/she) had a certain intent when (he/she) engaged in a particular act. The intention may be gathered from a person's acts, conduct, from all the person said and did at the particular time and place, and from all of the surrounding circumstances. You may consider any evidence as to the quantity, purity, and packaging
6 of S together with all the other evidence in the case to aid you in your determination of the element of intent to distribute. In regard to the fourth element, the State must prove, as I have stated, that the defendant acted knowingly or purposefully in having under (his/her) control or possessing S with intent to distribute. A person acts knowingly with respect to the nature of (his/her) conduct or the attendant circumstances if (he/she) is aware that (his/her) conduct is of that nature, or that such circumstances exist, or (he/she) is aware of a high probability of their existence. A person acts knowingly with respect to a result of (his/her) conduct if he is aware that it is practically certain that (his/her) conduct will cause such a result. "Knowing," "with knowledge" or equivalent terms have the same meaning.
7A person acts purposely with respect to the nature of (his/her) conduct or a result thereof if it is (his/her) conscious object to engage in conduct of that nature or to cause such a result. A person acts purposely with respect to attendant circumstances if (he/she) is aware of the existence of such circumstances of (he/she) believes or hopes that they exist. "With purpose," "designed," "with design" or equivalent terms have the same meaning.8 The terms "knowingly" and "purposefully," like intent, refer to conditions of the mind that cannot be seen. It is not necessary for the State to prove the existence of such mental states by direct evidence such as a statement by the defendant that (he/she) had particular knowledge or a particular purpose. Knowledge and purpose as separate propositions of proof do not commonly exist. They must ordinarily be discovered as other mental states are from circumstantial evidence; that is, by reference to the defendant's conduct, words or acts and all the surrounding circumstances.
To reiterate, the four elements of this offense are that:
1. The substance in evidence is (insert appropriate CDS or controlled substance analog).
2. The defendant possessed, or had under (his/her) control, S in evidence.
3. The defendant had the intent to distribute S in evidence.
4. That the defendant acted knowingly or purposely in possessing or having under (his/her) control with intent to distribute S in evidence.
If you find that the State had proven all these elements beyond a reasonable doubt, then you must return a verdict of guilty. On the other hand, if you find that the State has failed to prove any of these elements beyond a reasonable doubt, then you must return a verdict of not guilty.
For representation in Criminal and Litigation cases, call KENNETH VERCAMMEN & ASSOCIATES, PC ATTORNEY AT LAW 2053 Woodbridge Ave. Edison NJ 08817 (Phone) 732-572-0500 (Fax) 732-572-0030 Member of: New Jersey New York Pennsylvania & Federal Bars
----- 1 N.J.S.A. 2C:35-5 grades this offense for sentencing purposes by the type, quantity and purity of the CDS involved. In certain cases, the defendant is guilty of an offense regardless of the quantity and purity of the CDS distributed. This charge is sufficient for such cases. However, in cases in which the quantity and/or purity of the CDS is an element of the offense, N.J.S.A. 2C:35-5c requires that this element be determined by the jury. In such a case, this charge would have to be supplemented to add this element. Please see the supplementary model charge concerning this.
2 To be charged when the indictment alleges possession with intent to distribute a controlled substance analog.
3 N.J.S.A. 2C:35-2.
4 This definition is taken from the definitions of "distribute" and "deliver" set forth in N.J.S.A. 2C:35-2.
5 State v. Heitzman, 209 N.J. Super. 617, 621 (App. Div. 1986), aff'd 107 N.J. 603 (1987).
6 See State v. Perez, 218 N.J. Super. 478, 482-486 (App. Div. 1987).
7 N.J.S.A. 2C:2-2b(1).
8 N.J.S.A. 2C:2-2b(2)
Penalties expanded for Drug dealing:
2C:35-5. Manufacturing, distributing or dispensing 2C:35-5. Manufacturing, Distributing or Dispensing. a. Except as authorized by P.L.1970, c.226 (C.24:21-1 et seq.), it shall be unlawful for any person knowingly or purposely:
(1) To manufacture, distribute or dispense, or to possess or have under his control with intent to manufacture, distribute or dispense, a controlled dangerous substance or controlled substance analog; or
(2) To create, distribute, or possess or have under his control with intent to distribute, a counterfeit controlled dangerous substance.
b.Any person who violates subsection a. with respect to:
(1) Heroin, or its analog, or coca leaves and any salt, compound, derivative, or preparation of coca leaves, and any salt, compound, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances, or analogs, except that the substances shall not include decocainized coca leaves or extractions which do not contain cocaine or ecogine, or or 3,4-methylenedioxymethamphetamine or 3,4-methylenedioxyamphetamine, in a quantity of five ounces or more including any adulterants or dilutants is guilty of a crime of the first degree. The defendant shall, except as provided in N.J.S.2C:35-12, be sentenced to a term of imprisonment by the court. The term of imprisonment shall include the imposition of a minimum term which shall be fixed at, or between, one-third and one-half of the sentence imposed, during which the defendant shall be ineligible for parole. Notwithstanding the provisions of subsection a. of N.J.S.2C:43-3, a fine of up to $500,000.00 may be imposed;
(2) A substance referred to in paragraph (1) of this subsection, in a quantity of one-half ounce or more but less than five ounces, including any adulterants or dilutants is guilty of a crime of the second degree;
(3) A substance referred to paragraph (1) of this subsection in a quantity less than one-half ounce including any adulterants or dilutants is guilty of a crime of the third degree except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $75,000.00 may be imposed;
(4) A substance classified as a narcotic drug in Schedule I or II other than those specifically covered in this section, or the analog of any such substance, in a quantity of one ounce or more including any adulterants or dilutants is guilty of a crime of the second degree;
(5) A substance classified as a narcotic drug in Schedule I or II other than those specifically covered in this section, or the analog of any such substance, in a quantity of less than one ounce including any adulterants or dilutants is guilty of a crime of the third degree except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $75,000.00 may be imposed;
(6) Lysergic acid diethylamide, or its analog, in a quantity of 100 milligrams or more including any adulterants or dilutants, or phencyclidine, or its analog, in a quantity of 10 grams or more including any adulterants or dilutants, is guilty of a crime of the first degree. Except as provided in N.J.S.2C:35-12, the court shall impose a term of imprisonment which shall include the imposition of a minimum term, fixed at, or between, one-third and one-half of the sentence imposed by the court, during which the defendant shall be ineligible for parole. Notwithstanding the provisions of subsection a. of N.J.S.2C:43-3, a fine of up to $500,000.00 may be imposed;
(7) Lysergic acid diethylamide, or its analog, in a quantity of less than 100 milligrams including any adulterants or dilutants, or where the amount is undetermined, or phencyclidine, or its analog, in a quantity of less than 10 grams including any adulterants or dilutants, or where the amount is undetermined, is guilty of a crime of the second degree;
(8) Methamphetamine, or its analog, or phenyl-2-propanone (P2P), in a quantity of five ounces or more including any adulterants or dilutants is guilty of a crime of the first degree. Notwithstanding the provisions of subsection a. of N.J.S.2C:43-3, a fine of up to $300,000.00 may be imposed;
(9) (a) Methamphetamine, or its analog, or phenyl-2-propanone (P2P), in a quantity of one-half ounce or more but less than five ounces including any adulterants or dilutants is guilty of a crime of the second degree;
(b) Methamphetamine, or its analog, or phenyl-2-propanone (P2P), in a quantity of less than one-half ounce including any adulterants or dilutants is guilty of a crime of the third degree except that notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $75,000.00 may be imposed;
(10) (a) Marijuana in a quantity of 25 pounds or more including any adulterants or dilutants, or 50 or more marijuana plants, regardless of weight, or hashish in a quantity of five pounds or more including any adulterants or dilutants, is guilty of a crime of the first degree. Notwithstanding the provisions of subsection a. of N.J.S.2C:43-3, a fine of up to $300,000.00 may be imposed;
(b) Marijuana in a quantity of five pounds or more but less than 25 pounds including any adulterants or dilutants, or 10 or more but fewer than 50 marijuana plants, regardless of weight, or hashish in a quantity of one pound or more but less than five pounds, including any adulterants and dilutants, is guilty of a crime of the second degree;
(11) Marijuana in a quantity of one ounce or more but less than five pounds including any adulterants or dilutants, or hashish in a quantity of five grams or more but less than one pound including any adulterants or dilutants, is guilty of a crime of the third degree except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $25,000.00 may be imposed;
(12) Marijuana in a quantity of less than one ounce including any adulterants or dilutants, or hashish in a quantity of less than five grams including any adulterants or dilutants, is guilty of a crime of the fourth degree;
(13) Any other controlled dangerous substance classified in Schedule I, II, III or IV, or its analog, is guilty of a crime of the third degree, except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $25,000.00 may be imposed; or
(14) Any Schedule V substance, or its analog, is guilty of a crime of the fourth degree except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $25,000.00 may be imposed.
c.Where the degree of the offense for violation of this section depends on the quantity of the substance, the quantity involved shall be determined by the trier of fact. Where the indictment or accusation so provides, the quantity involved in individual acts of manufacturing, distribution, dispensing or possessing with intent to distribute may be aggregated in determining the grade of the offense, whether distribution or dispensing is to the same person or several persons, provided that each individual act of manufacturing, distribution, dispensing or possession with intent to distribute was committed within the applicable statute of limitations.
Amended 1988, c.44, s.2; 1997, c.181, s.3; 1997, c.186, s.3; 2000, c.55; 2000, c.136.
2C:35-5.2 Manufacturing, etc. gamma hydroxybutyrate; penalties 3. a. Except as authorized by P.L.1970, c.226 (C.24:21-1 et seq.), it shall be a crime of the second degree for any person knowingly or purposely to manufacture, distribute or dispense, or to possess or have under his control with intent to manufacture, distribute or dispense gamma hydroxybutyrate.
b. Notwithstanding the provisions of N.J.S.2C:43-3 or any other law, a fine of up to $150,000.00 may be imposed upon a person who violates this section.
L.1997,c. 194, s.3.
2C:35-5.3 Manufacturing, etc. flunitrazepam; penalties 5. a. Except as authorized by P.L.1970, c.226 (C.24:21-1 et seq.), it is unlawful for any person knowingly or purposely to manufacture, distribute or dispense, or to possess or have under his control with intent to manufacture, distribute or dispense flunitrazepam.
b. A person who violates subsection a. of this section with respect to flunitrazepam in a quantity of one gram or more is guilty of a crime of the first degree and, notwithstanding the provisions of N.J.S.2C:43-3 or any other law, a fine of up to $250,000.00 may be imposed upon the person.
c. A person who violates subsection a. of this section with respect to flunitrazepam in a quantity of less than one gram is guilty of a crime of the second degree and, notwithstanding the provisions of N.J.S.2C:43-3 or any other law, a fine of up to $150,000.00 may be imposed upon the person.
http://www.njlaws.com/possession_with_intent_to_distribute.htm
Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey.
If someone is Indicted for Possession of Drugs with Intent to Distribute, the Judge will read portions of the following to the Jury. They are called request to charge. Count of the indictment charges the defendant as follows: (Read Indictment)
The pertinent part of the statute (N.J.S.A. 2C:35-5)1 on which this indictment is based reads as follows:
Except as authorized by (statute), it shall be unlawful for any person knowingly or purposely ... to possess or have under his control with intent to ... distribute a controlled dangerous substance (or controlled substance analog).
2 The various kinds of substances are defined in another part of our statute. (Insert appropriate CDS, e.g., heroin, cocaine, etc.) is a dangerous substance prohibited by statute. (The defendant does not claim legal authorization, so the exceptions in the statute are not applicable in this case.) The statute, read together with the indictment, identifies the elements which the State must prove beyond a reasonable doubt to establish guilt of the defendant on this (count of the) indictment.
They are as follows:
1. The substance in evidence is (insert appropriate CDS or controlled substance analog).
2. The defendant possessed, or had under (his/her) control, S in evidence.
3. The defendant, when (he/she) possessed or had under (his/her) control S in evidence, had the intent to distribute S in evidence.
4. That the defendant acted knowingly or purposefully in possessing or having under (his/her) control with intent to distribute S in evidence.
[when it is alleged that a controlled substance analog was possessed with intent to distribute the following definition of controlled substance analog should be charged]:
In regard to the first element, a "controlled substance analog" is a substance which (1) has a chemical structure substantially similar to that of a controlled dangerous substance and (2) was specifically designed to produce an effect substantially similar to that of a controlled substance.3 In this case the indictment alleges that the defendant distributed which is an analog of the controlled dangerous substance . Thus, to establish this element the State must prove beyond a reasonable doubt that has a substantially similar chemical structure to the controlled dangerous substance and that was specifically designed to produce an effect substantially similar to the controlled dangerous substance.
In regard to the second element, that the defendant had under (his/her) control or possessed S in evidence, "possess" means (charge definition of possession). In regard to the third element, that the defendant had the intent to distribute S in evidence, "distribute" means the transfer, actual, constructive or attempted,4 from one person to another of a controlled dangerous substance (or controlled substance analog). It is not necessary that the drugs be transferred in exchange for payment or promise of payment of money or anything of value.
5 "Intent" means a purpose to do something, a resolution to do a particular act or accomplish a certain thing. Intent is a state of mind, and it is very rare that intent is proven by witnesses who can testify that an accused said (he/she) had a certain intent when (he/she) engaged in a particular act. The intention may be gathered from a person's acts, conduct, from all the person said and did at the particular time and place, and from all of the surrounding circumstances. You may consider any evidence as to the quantity, purity, and packaging
6 of S together with all the other evidence in the case to aid you in your determination of the element of intent to distribute. In regard to the fourth element, the State must prove, as I have stated, that the defendant acted knowingly or purposefully in having under (his/her) control or possessing S with intent to distribute. A person acts knowingly with respect to the nature of (his/her) conduct or the attendant circumstances if (he/she) is aware that (his/her) conduct is of that nature, or that such circumstances exist, or (he/she) is aware of a high probability of their existence. A person acts knowingly with respect to a result of (his/her) conduct if he is aware that it is practically certain that (his/her) conduct will cause such a result. "Knowing," "with knowledge" or equivalent terms have the same meaning.
7A person acts purposely with respect to the nature of (his/her) conduct or a result thereof if it is (his/her) conscious object to engage in conduct of that nature or to cause such a result. A person acts purposely with respect to attendant circumstances if (he/she) is aware of the existence of such circumstances of (he/she) believes or hopes that they exist. "With purpose," "designed," "with design" or equivalent terms have the same meaning.8 The terms "knowingly" and "purposefully," like intent, refer to conditions of the mind that cannot be seen. It is not necessary for the State to prove the existence of such mental states by direct evidence such as a statement by the defendant that (he/she) had particular knowledge or a particular purpose. Knowledge and purpose as separate propositions of proof do not commonly exist. They must ordinarily be discovered as other mental states are from circumstantial evidence; that is, by reference to the defendant's conduct, words or acts and all the surrounding circumstances.
To reiterate, the four elements of this offense are that:
1. The substance in evidence is (insert appropriate CDS or controlled substance analog).
2. The defendant possessed, or had under (his/her) control, S in evidence.
3. The defendant had the intent to distribute S in evidence.
4. That the defendant acted knowingly or purposely in possessing or having under (his/her) control with intent to distribute S in evidence.
If you find that the State had proven all these elements beyond a reasonable doubt, then you must return a verdict of guilty. On the other hand, if you find that the State has failed to prove any of these elements beyond a reasonable doubt, then you must return a verdict of not guilty.
For representation in Criminal and Litigation cases, call KENNETH VERCAMMEN & ASSOCIATES, PC ATTORNEY AT LAW 2053 Woodbridge Ave. Edison NJ 08817 (Phone) 732-572-0500 (Fax) 732-572-0030 Member of: New Jersey New York Pennsylvania & Federal Bars
----- 1 N.J.S.A. 2C:35-5 grades this offense for sentencing purposes by the type, quantity and purity of the CDS involved. In certain cases, the defendant is guilty of an offense regardless of the quantity and purity of the CDS distributed. This charge is sufficient for such cases. However, in cases in which the quantity and/or purity of the CDS is an element of the offense, N.J.S.A. 2C:35-5c requires that this element be determined by the jury. In such a case, this charge would have to be supplemented to add this element. Please see the supplementary model charge concerning this.
2 To be charged when the indictment alleges possession with intent to distribute a controlled substance analog.
3 N.J.S.A. 2C:35-2.
4 This definition is taken from the definitions of "distribute" and "deliver" set forth in N.J.S.A. 2C:35-2.
5 State v. Heitzman, 209 N.J. Super. 617, 621 (App. Div. 1986), aff'd 107 N.J. 603 (1987).
6 See State v. Perez, 218 N.J. Super. 478, 482-486 (App. Div. 1987).
7 N.J.S.A. 2C:2-2b(1).
8 N.J.S.A. 2C:2-2b(2)
Penalties expanded for Drug dealing:
2C:35-5. Manufacturing, distributing or dispensing 2C:35-5. Manufacturing, Distributing or Dispensing. a. Except as authorized by P.L.1970, c.226 (C.24:21-1 et seq.), it shall be unlawful for any person knowingly or purposely:
(1) To manufacture, distribute or dispense, or to possess or have under his control with intent to manufacture, distribute or dispense, a controlled dangerous substance or controlled substance analog; or
(2) To create, distribute, or possess or have under his control with intent to distribute, a counterfeit controlled dangerous substance.
b.Any person who violates subsection a. with respect to:
(1) Heroin, or its analog, or coca leaves and any salt, compound, derivative, or preparation of coca leaves, and any salt, compound, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances, or analogs, except that the substances shall not include decocainized coca leaves or extractions which do not contain cocaine or ecogine, or or 3,4-methylenedioxymethamphetamine or 3,4-methylenedioxyamphetamine, in a quantity of five ounces or more including any adulterants or dilutants is guilty of a crime of the first degree. The defendant shall, except as provided in N.J.S.2C:35-12, be sentenced to a term of imprisonment by the court. The term of imprisonment shall include the imposition of a minimum term which shall be fixed at, or between, one-third and one-half of the sentence imposed, during which the defendant shall be ineligible for parole. Notwithstanding the provisions of subsection a. of N.J.S.2C:43-3, a fine of up to $500,000.00 may be imposed;
(2) A substance referred to in paragraph (1) of this subsection, in a quantity of one-half ounce or more but less than five ounces, including any adulterants or dilutants is guilty of a crime of the second degree;
(3) A substance referred to paragraph (1) of this subsection in a quantity less than one-half ounce including any adulterants or dilutants is guilty of a crime of the third degree except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $75,000.00 may be imposed;
(4) A substance classified as a narcotic drug in Schedule I or II other than those specifically covered in this section, or the analog of any such substance, in a quantity of one ounce or more including any adulterants or dilutants is guilty of a crime of the second degree;
(5) A substance classified as a narcotic drug in Schedule I or II other than those specifically covered in this section, or the analog of any such substance, in a quantity of less than one ounce including any adulterants or dilutants is guilty of a crime of the third degree except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $75,000.00 may be imposed;
(6) Lysergic acid diethylamide, or its analog, in a quantity of 100 milligrams or more including any adulterants or dilutants, or phencyclidine, or its analog, in a quantity of 10 grams or more including any adulterants or dilutants, is guilty of a crime of the first degree. Except as provided in N.J.S.2C:35-12, the court shall impose a term of imprisonment which shall include the imposition of a minimum term, fixed at, or between, one-third and one-half of the sentence imposed by the court, during which the defendant shall be ineligible for parole. Notwithstanding the provisions of subsection a. of N.J.S.2C:43-3, a fine of up to $500,000.00 may be imposed;
(7) Lysergic acid diethylamide, or its analog, in a quantity of less than 100 milligrams including any adulterants or dilutants, or where the amount is undetermined, or phencyclidine, or its analog, in a quantity of less than 10 grams including any adulterants or dilutants, or where the amount is undetermined, is guilty of a crime of the second degree;
(8) Methamphetamine, or its analog, or phenyl-2-propanone (P2P), in a quantity of five ounces or more including any adulterants or dilutants is guilty of a crime of the first degree. Notwithstanding the provisions of subsection a. of N.J.S.2C:43-3, a fine of up to $300,000.00 may be imposed;
(9) (a) Methamphetamine, or its analog, or phenyl-2-propanone (P2P), in a quantity of one-half ounce or more but less than five ounces including any adulterants or dilutants is guilty of a crime of the second degree;
(b) Methamphetamine, or its analog, or phenyl-2-propanone (P2P), in a quantity of less than one-half ounce including any adulterants or dilutants is guilty of a crime of the third degree except that notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $75,000.00 may be imposed;
(10) (a) Marijuana in a quantity of 25 pounds or more including any adulterants or dilutants, or 50 or more marijuana plants, regardless of weight, or hashish in a quantity of five pounds or more including any adulterants or dilutants, is guilty of a crime of the first degree. Notwithstanding the provisions of subsection a. of N.J.S.2C:43-3, a fine of up to $300,000.00 may be imposed;
(b) Marijuana in a quantity of five pounds or more but less than 25 pounds including any adulterants or dilutants, or 10 or more but fewer than 50 marijuana plants, regardless of weight, or hashish in a quantity of one pound or more but less than five pounds, including any adulterants and dilutants, is guilty of a crime of the second degree;
(11) Marijuana in a quantity of one ounce or more but less than five pounds including any adulterants or dilutants, or hashish in a quantity of five grams or more but less than one pound including any adulterants or dilutants, is guilty of a crime of the third degree except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $25,000.00 may be imposed;
(12) Marijuana in a quantity of less than one ounce including any adulterants or dilutants, or hashish in a quantity of less than five grams including any adulterants or dilutants, is guilty of a crime of the fourth degree;
(13) Any other controlled dangerous substance classified in Schedule I, II, III or IV, or its analog, is guilty of a crime of the third degree, except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $25,000.00 may be imposed; or
(14) Any Schedule V substance, or its analog, is guilty of a crime of the fourth degree except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $25,000.00 may be imposed.
c.Where the degree of the offense for violation of this section depends on the quantity of the substance, the quantity involved shall be determined by the trier of fact. Where the indictment or accusation so provides, the quantity involved in individual acts of manufacturing, distribution, dispensing or possessing with intent to distribute may be aggregated in determining the grade of the offense, whether distribution or dispensing is to the same person or several persons, provided that each individual act of manufacturing, distribution, dispensing or possession with intent to distribute was committed within the applicable statute of limitations.
Amended 1988, c.44, s.2; 1997, c.181, s.3; 1997, c.186, s.3; 2000, c.55; 2000, c.136.
2C:35-5.2 Manufacturing, etc. gamma hydroxybutyrate; penalties 3. a. Except as authorized by P.L.1970, c.226 (C.24:21-1 et seq.), it shall be a crime of the second degree for any person knowingly or purposely to manufacture, distribute or dispense, or to possess or have under his control with intent to manufacture, distribute or dispense gamma hydroxybutyrate.
b. Notwithstanding the provisions of N.J.S.2C:43-3 or any other law, a fine of up to $150,000.00 may be imposed upon a person who violates this section.
L.1997,c. 194, s.3.
2C:35-5.3 Manufacturing, etc. flunitrazepam; penalties 5. a. Except as authorized by P.L.1970, c.226 (C.24:21-1 et seq.), it is unlawful for any person knowingly or purposely to manufacture, distribute or dispense, or to possess or have under his control with intent to manufacture, distribute or dispense flunitrazepam.
b. A person who violates subsection a. of this section with respect to flunitrazepam in a quantity of one gram or more is guilty of a crime of the first degree and, notwithstanding the provisions of N.J.S.2C:43-3 or any other law, a fine of up to $250,000.00 may be imposed upon the person.
c. A person who violates subsection a. of this section with respect to flunitrazepam in a quantity of less than one gram is guilty of a crime of the second degree and, notwithstanding the provisions of N.J.S.2C:43-3 or any other law, a fine of up to $150,000.00 may be imposed upon the person.
Pre-trial Intervention
Pre-trial Intervention
http://www.njlaws.com/pre-trial_intervention.htm
Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey.
Under New Jersey Criminal Statute and Court Rules, someone charged with an indictable criminal offense who has no prior indictable offenses can apply for Pre-Trial Intervention (PTI).
This Statute permits someone under limited instances to have the prosecution stopped and enter into a probation type program. If someone successfully completes PTI, the indictable criminal charge is dismissed.
PTI is not available if the criminal offense is a disorderly person offense, such as simple assault, harassment or shoplifting. For persons facing a first offense possession of marijuana charge, they can apply for a Conditional Discharge. NJSA 2C: 36-1. As a practical matter, in Municipal Courts, the defense attorneys sometimes can work out an agreement with the complainant in a municipal court criminal ticket to have the prosecution put on hold for six months. If the defendant complies with a stipulated agreement, such as staying away from the complainant, after 6 months the criminal charges are dismissed.
It is imperative for someone facing criminal charges, whether indictable or not, to immediately hire an experienced criminal attorney.
Do not rely on a real estate attorney to be familiar with recent cases affecting PTI and criminal law.
PTI should be applied for immediately with Criminal Case Management. The Court Rules have time limits for PTI application and appeals from denial of PTI. Procedurally, once the accused applies for PTI, a decision to accept or reject is made by the Criminal Case Manager.
If approved, then the County Prosecutor's office must approve. Thereafter, the Superior Court Judge assigned to the case must approve the defendant.
If the defendant is rejected by either the Criminal Case Manager or the Prosecutor, a timely appeal must be filed with the Superior Court Judge.
In Practice, my law office has submitted letters of reference, proof of employment, a resume and other supporting documents to the Criminal Case Manager. Similar to sentencing, you want to provide any beneficial facts and papers to demonstrate the defendant is a first time offender who is unlikely to again be involved in a criminal case.
Similar to Probation following a guilty plea or conviction, the Court can require the defendant to perform certain acts. Typical re-trial orders direct the defendant to not get arrested, undergo drug and alcohol testing and counseling, pay restitution or perform other acts.
Non-compliance will result in dismissal from PTI. Thereafter, the defendant must face trial on all indictable charges.
CONDITIONAL DISCHARGE OF DRUG CHARGES IN MUNICIPAL COURT
The defense of a person charged with possession of drugs or drug paraphernalia is a difficult but not impossible task for a defense. There are a number of viable defenses, arguments and alternatives which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to an attorney defending a client accused of involvement with controlled dangerous substances (CDS).
If the Suppression Motion is unsuccessful or not a viable option, counsel should discuss the possibility of obtaining a Conditional Discharge.
Some people are charged with possession of small amounts of marijuana. N.J.S.A. 2C:36A-1 provides that a person not previously convicted of a drug offense either under Title 2C or Title 24 and who has not previously been granted "supervisory treatment" under N.J.S.A. 24:21-27, 2C:43-12 or 2C:36A-1 may apply for a conditional discharge.
The court upon notice to the prosecutor and subject to 2C:36A-1(c) may, on the motion of the defendant or the court, suspend further proceedings and place the defendant on supervisory treatment (i.e., probation,, supervised or unsupervised attendance at Narcotics Anonymous, etc.). Since the granting of a conditional discharge is optional with the court, defense counsel should be prepared to prove, through letters, documents, or even witnesses, that the defendant's continued presence in the community or in a civil treatment program, will not pose a danger to the community.
Defense counsel should be prepared to convince the court that the terms and conditions of supervisory treatment will be adequate to protect the public and will benefit the defendant by serving to correct any dependence on or use of controlled substances. For applicable caselaw on conditional discharges, see State v. Sanders, N.J. Super. 515 (App. Div. 1979), State v. Banks, 157 N.J. Super. 442 (Law Div. 1978), State v. Grochulski, 133 N.J. Super. 586 (Law Div. 1975), State v. Teitelbaum, 160 N.J. Super. 450 (Law Div. 1978), State v. DiLuzio, 130 N.J. Super. 220 (Law Div. 1974). The defendant must be required to pay a $45.00 application fee, plus the mandatory $500.00 DEDR penalty. The court further has the option to suspend a defendant's driver's license for between six months and two years.
The conditional discharge period is also between six months and two years. If the defendant is convicted of a drug offense during the CD period or violates the conditions set by the court, the prosecution resumes. The defendant may even apply for a conditional discharge after he/she is found guilty, but before sentence is imposed. If the CD is granted at this point in the proceeding, the 6 to 24 month license suspension is mandatory.
Drug related offenses carry substantial penalties which will effect a client for the rest of his life. The space limits of this article do not allow detailed explanation of the extensive caselaw on controlled dangerous substances. Members of the Bar must accept the challenge and apply their legal talents to ensure that the rights of their clients are protected.
CONCLUSION
Pre-trial intervention is an excellent opportunity for someone to avoid a trial and conviction. If facing criminal charges, quickly sit down with a criminal attorney to protect your rights. If accepted into Pre-Trial Intervention, Motions to Suppress Evidence and other Motions are put on hold.
PTI law:
2C:43-12. Supervisory treatment - pretrial intervention 2C:43-12. Supervisory Treatment--Pretrial Intervention. a. Public policy. The purpose of sections 2C:43-12 through 2C:43-22 of this chapter is to effectuate a Statewide program of Pretrial Intervention. It is the policy of the State of New Jersey that supervisory treatment should ordinarily be limited to persons who have not previously been convicted of any criminal offense under the laws of New Jersey, or under any criminal law of the United States, or any other state when supervisory treatment would:
(1) Provide applicants, on an equal basis, with opportunities to avoid ordinary prosecution by receiving early rehabilitative services or supervision, when such services or supervision can reasonably be expected to deter future criminal behavior by an applicant, and when there is apparent causal connection between the offense charged and the rehabilitative or supervisory need, without which cause both the alleged offense and the need to prosecute might not have occurred; or
(2) Provide an alternative to prosecution for applicants who might be harmed by the imposition of criminal sanctions as presently administered, when such an alternative can be expected to serve as sufficient sanction to deter criminal conduct; or
(3) Provide a mechanism for permitting the least burdensome form of prosecution possible for defendants charged with "victimless" offenses; or
(4) Provide assistance to criminal calendars in order to focus expenditure of criminal justice resources on matters involving serious criminality and severe correctional problems; or
(5) Provide deterrence of future criminal or disorderly behavior by an applicant in a program of supervisory treatment.
b. Admission of an applicant into a program of supervisory treatment shall be measured according to the applicant's amenability to correction, responsiveness to rehabilitation and the nature of the offense.
c. The decision and reasons therefor made by the designated judges (or assignment judges), prosecutors and program directors in granting or denying applications for supervisory treatment, in recommending and ordering termination from the program or dismissal of charges, in all cases shall be reduced to writing and disclosed to the applicant.
d. If an applicant desires to challenge the decision of the prosecutor or program director not to recommend enrollment in a program of supervisory treatment the proceedings prescribed under section 14 shall be followed.
e. Referral. At any time prior to trial but after the filing of a criminal complaint, or the filing of an accusation or the return of an indictment, with the consent of the prosecutor and upon written recommendation of the program director, the assignment judge or a judge designated by him may postpone all further proceedings against an applicant and refer said applicant to a program of supervisory treatment approved by the Supreme Court. Prosecutors and program directors shall consider in formulating their recommendation of an applicant's participation in a supervisory treatment program, among others, the following criteria:
(1) The nature of the offense;
(2) The facts of the case;
(3) The motivation and age of the defendant;
(4) The desire of the complainant or victim to forego prosecution;
(5) The existence of personal problems and character traits which may be related to the applicant's crime and for which services are unavailable within the criminal justice system, or which may be provided more effectively through supervisory treatment and the probability that the causes of criminal behavior can be controlled by proper treatment;
(6) The likelihood that the applicant's crime is related to a condition or situation that would be conducive to change through his participation in supervisory treatment;
(7) The needs and interests of the victim and society;
(8) The extent to which the applicant's crime constitutes part of a continuing pattern of anti-social behavior;
(9) The applicant's record of criminal and penal violations and the extent to which he may present a substantial danger to others;
(10) Whether or not the crime is of an assaultive or violent nature, whether in the criminal act itself or in the possible injurious consequences of such behavior;
(11) Consideration of whether or not prosecution would exacerbate the social problem that led to the applicant's criminal act;
(12) The history of the use of physical violence toward others;
(13) Any involvement of the applicant with organized crime;
(14) Whether or not the crime is of such a nature that the value of supervisory treatment would be outweighed by the public need for prosecution;
(15) Whether or not the applicant's involvement with other people in the crime charged or in other crime is such that the interest of the State would be best served by processing his case through traditional criminal justice system procedures;
(16) Whether or not the applicant's participation in pretrial intervention will adversely affect the prosecution of codefendants; and
(17) Whether or not the harm done to society by abandoning criminal prosecution would outweigh the benefits to society from channeling an offender into a supervisory treatment program.
f. Review of Supervisory Treatment Applications; Procedure Upon Denial. Each applicant for supervisory treatment shall be entitled to full and fair consideration of his application. If an application is denied, the program director or the prosecutor shall precisely state his findings and conclusion which shall include the facts upon which the application is based and the reasons offered for the denial. If the applicant desires to challenge the decision of a program director not to recommend, or of a prosecutor not to consent to, enrollment into a supervisory treatment program, a motion shall be filed before the designated judge (or assignment judge) authorized pursuant to the rules of court to enter orders.
g. Limitations. Supervisory treatment may occur only once with respect to any defendant and any person who has previously received supervisory treatment under section 27 of P.L.1970, c.226 (C.24:21-27), shall not be eligible for supervisory treatment under this section. However, supervisory treatment, as provided herein, shall be available to a defendant irrespective of whether the defendant contests his guilt of the charge or charges against him.
h. Termination. Termination of supervisory treatment under this section shall be immediately reported to the assignment judge of the county who shall forward such information to the Administrative Director of the Courts.
i. Appointment of Program Directors; Authorized Referrals. Programs of supervisory treatment and appointment of the program directors require approval by the Supreme Court with the consent of the assignment judge and prosecutor. Referrals of participants from supervisory treatment programs may be to any public or private office or agency, including but not limited to, programs within the probation service of the court, offering counseling or any other social service likely to aid in the rehabilitation of the participant and to deter the commission of other offenses.
j. Health Care Professional Licensing Board Notification. The program director shall promptly notify the State Board of Medical Examiners when a State licensed physician or podiatrist has been enrolled in a supervisory treatment program after he has been charged with an offense involving drugs or alcohol.
Amended 1979, c.178, s.88; 1987,c.106,s.14; 1989,c.300,s.22.
2C:43-13. Supervisory treatment procedure 2C:43-13. Supervisory Treatment Procedure a. Agreement. The terms and duration of the supervisory treatment shall be set forth in writing, signed by the prosecutor and agreed to and signed by the participant. Payment of the assessment required by section 2 of P.L.1979, c.396 (C.2C:43-3.1) shall be included as a term of the agreement. If the participant is represented by counsel, defense counsel shall also sign the agreement. Each order of supervisory treatment shall be filed with the county clerk.
b. Charges. During a period of supervisory treatment the charge or charges on which the participant is undergoing supervisory treatment shall be held in an inactive status pending termination of the supervisory treatment pursuant to subsection d. or e. of this section.
c. Period of treatment. Supervisory treatment may be for such period, as determined by the designated judge or the assignment judge, not to exceed three years, provided, however, that the period of supervisory treatment may be shortened or terminated as the program director may determine with the consent of the prosecutor and the approval of the court.
d. Dismissal. Upon completion of supervisory treatment, and with the consent of the prosecutor, the complaint, indictment or accusation against the participant may be dismissed with prejudice.
e. Violation of conditions. Upon violation of the conditions of supervisory treatment, the court shall determine, after summary hearing, whether said violation warrants the participant's dismissal from the supervisory treatment program or modification of the conditions of continued participation in that or another supervisory treatment program. Upon dismissal of the participant from the supervisory treatment program, the charges against the participant may be reactivated and the prosecutor may proceed as though no supervisory treatment had been commenced.
f. Evidence. No statement or other disclosure by a participant undergoing supervisory treatment made or disclosed to the person designated to provide such supervisory treatment shall be disclosed, at any time, to the prosecutor in connection with the charge or charges against the participant, nor shall any such statement or disclosure be admitted as evidence in any civil or criminal proceeding against the participant. Nothing provided herein, however, shall prevent the person providing supervisory treatment from informing the prosecutor, or the court, upon request or otherwise as to whether or not the participant is satisfactorily responding to supervisory treatment.
g. Delay. No participant agreeing to undergo supervisory treatment shall be permitted to complain of a lack of speedy trial for any delay caused by the commencement of supervisory treatment.
A person applying for admission to a program of supervisory treatment shall pay to the court a fee of $75.00. The court shall forward all money collected under this subsection to the treasurer of the county in which the court is located. This money shall be used to defray the cost of juror compensation within that county. A person may apply for a waiver of this fee, by reason of poverty, pursuant to the Rules Governing the Courts of the State of New Jersey. Of the moneys collected under this subsection, $30.00 of each application fee shall be deposited in the temporary reserve fund created by section 25 of P.L.1993, c.275. After December 31, 1994,the $75.00 fee shall be paid to the court, for use by the State.
Amended 1979,c.178,s.89; 1988,c.44,s.15; 1991,c.329,s.5; 1993,c.275,s.15.
2C:43-14. Authority of supreme court The Supreme Court may adopt rules dealing with Supervisory Treatment in accordance with procedures herein set forth.
L.1978, c. 95, s. 2C:43-14, eff. Sept. 1, 1979. 2C:43-15. Presentation of proposed rules at judicial conference 2C:43-15. The subject matter and a tentative draft of a rule or rules proposed to be adopted pursuant to this chapter shall be entered upon the agenda and discussed at a Judicial Conference whose membership shall at least include delegates from the Supreme Court, the Appellate Division of the Superior Court, the judges of the Superior Court, the judges of the municipal courts, the surrogates, the State Bar Association, the county bar associations, the Senate and General Assembly, the Attorney General, the county prosecutors, the law schools of this State, and members of the public.
Amended 1979,c.178,s.90; 1991,c.91,s.145.
2C:43-16. Public announcement of proposed rules; delivery of copies The proposed rule or rules shall be publicly announced by the Supreme Court on September 15 next following such Judicial Conference (or, if such day be a Saturday, Sunday or legal holiday, on the first day thereafter that is not), and the court shall, on the same day, cause true copies thereof to be delivered to the President of the Senate, the Speaker of the General Assembly, and the Governor.
L.1978, c. 95, s. 2C:43-16, eff. Sept. 1, 1979.
2C:43-17. Effective date of rules; rules subject to cancellation by joint resolution The rule or rules so announced and delivered shall take effect on July 1 next following; provided, however, that all such rules shall remain subject to cancellation at any time up to such effective date by joint resolution to that effect adopted by the Senate and General Assembly and signed by the Governor.
L.1978, c. 95, s. 2C:43-17, eff. Sept. 1, 1979. 2C:43-18. Change or cancellation of rules by statute or adoption of subsequent rules Any rule or rules so proposed or adopted shall be subject to change or cancellation at any time by statute or by a subsequent rule adopted pursuant to this chapter.
L.1978, c. 95, s. 2C:43-18, eff. Sept. 1, 1979. Amended by L.1979, c. 178, s. 91, eff. Sept. 1, 1979.
2C:43-19. Adoption of rules at such time, or with such effective date, or without presentation at judicial conference, as may be provided in joint resolution By joint resolution adopted by the Senate and General Assembly and signed by the Governor with respect to a particular rule or rules therein specified the Supreme Court may adopt such rule or rules at such time or times, or with such effective date, or without presentation at a Judicial Conference, as may be provided in the joint resolution.
L.1978, c. 95, s. 2C:43-19, eff. Sept. 1, 1979.
2C:43-20. Reduction or elimination of time during which rules may be canceled by joint resolution By joint resolution adopted by the Senate and General Assembly and signed by the Governor with respect to a particular rule or rules therein specified, the period of time as provided in 2C:43-17 during which the same may be canceled by joint resolution may be reduced or eliminated.
L.1978, c. 95, s. 2C:43-20, eff. Sept. 1, 1979. 2C:43-21. Index and reports a. Index. The Administrative Director of the Courts shall establish and maintain an index of cases in which applications for supervisory treatment have been made and such index shall indicate the dispositions of those applications.
b. Reports. At the termination of the year in which this chapter takes effect and at the termination of each calendar year thereafter, for a period of 5 years, the assignment judge for each county shall report the results of the rehabilitative effort prescribed in this act to the Administrative Director of the Courts. The report shall include a description of offenses for which supervisory treatment was prescribed, the type of treatment to which defendants were assigned, the number and types of criminal acts, if any, committed by persons during their period of supervisory treatment, the number of persons successfully completing supervisory treatment and against whom charges were dismissed, and, where possible, the number and types of criminal acts, if any, committed by such persons subsequent to successful completion of supervisory treatment.
c. Evaluation. The Administrative Director of the Courts shall, from time to time as he deems necessary, or upon request from the Legislature, evaluate the program of supervisory treatment on the basis of reports made to him by county and municipal prosecutors. He shall submit his evaluation, together with special findings and recommendations to the Legislature.
d. No order of expungement or sealing shall affect any entry in the index or any registry of such information established by the Administrative Office of the Courts.
L.1978, c. 95, s. 2C:43-21, eff. Sept. 1, 1979. Amended by L.1979, c. 178, s. 92, eff. Sept. 1, 1979.
2C:43-22. Disclaimer Nothing contained in this act is intended to supersede, repeal or modify the authority granted and procedure prescribed under section 27 of P.L.1970, c. 226 (C. 24:21-27).
L.1978, c. 95, s. 2C:43-22, eff. Sept. 1, 1979.
http://www.njlaws.com/pre-trial_intervention.htm
Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey.
Under New Jersey Criminal Statute and Court Rules, someone charged with an indictable criminal offense who has no prior indictable offenses can apply for Pre-Trial Intervention (PTI).
This Statute permits someone under limited instances to have the prosecution stopped and enter into a probation type program. If someone successfully completes PTI, the indictable criminal charge is dismissed.
PTI is not available if the criminal offense is a disorderly person offense, such as simple assault, harassment or shoplifting. For persons facing a first offense possession of marijuana charge, they can apply for a Conditional Discharge. NJSA 2C: 36-1. As a practical matter, in Municipal Courts, the defense attorneys sometimes can work out an agreement with the complainant in a municipal court criminal ticket to have the prosecution put on hold for six months. If the defendant complies with a stipulated agreement, such as staying away from the complainant, after 6 months the criminal charges are dismissed.
It is imperative for someone facing criminal charges, whether indictable or not, to immediately hire an experienced criminal attorney.
Do not rely on a real estate attorney to be familiar with recent cases affecting PTI and criminal law.
PTI should be applied for immediately with Criminal Case Management. The Court Rules have time limits for PTI application and appeals from denial of PTI. Procedurally, once the accused applies for PTI, a decision to accept or reject is made by the Criminal Case Manager.
If approved, then the County Prosecutor's office must approve. Thereafter, the Superior Court Judge assigned to the case must approve the defendant.
If the defendant is rejected by either the Criminal Case Manager or the Prosecutor, a timely appeal must be filed with the Superior Court Judge.
In Practice, my law office has submitted letters of reference, proof of employment, a resume and other supporting documents to the Criminal Case Manager. Similar to sentencing, you want to provide any beneficial facts and papers to demonstrate the defendant is a first time offender who is unlikely to again be involved in a criminal case.
Similar to Probation following a guilty plea or conviction, the Court can require the defendant to perform certain acts. Typical re-trial orders direct the defendant to not get arrested, undergo drug and alcohol testing and counseling, pay restitution or perform other acts.
Non-compliance will result in dismissal from PTI. Thereafter, the defendant must face trial on all indictable charges.
CONDITIONAL DISCHARGE OF DRUG CHARGES IN MUNICIPAL COURT
The defense of a person charged with possession of drugs or drug paraphernalia is a difficult but not impossible task for a defense. There are a number of viable defenses, arguments and alternatives which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to an attorney defending a client accused of involvement with controlled dangerous substances (CDS).
If the Suppression Motion is unsuccessful or not a viable option, counsel should discuss the possibility of obtaining a Conditional Discharge.
Some people are charged with possession of small amounts of marijuana. N.J.S.A. 2C:36A-1 provides that a person not previously convicted of a drug offense either under Title 2C or Title 24 and who has not previously been granted "supervisory treatment" under N.J.S.A. 24:21-27, 2C:43-12 or 2C:36A-1 may apply for a conditional discharge.
The court upon notice to the prosecutor and subject to 2C:36A-1(c) may, on the motion of the defendant or the court, suspend further proceedings and place the defendant on supervisory treatment (i.e., probation,, supervised or unsupervised attendance at Narcotics Anonymous, etc.). Since the granting of a conditional discharge is optional with the court, defense counsel should be prepared to prove, through letters, documents, or even witnesses, that the defendant's continued presence in the community or in a civil treatment program, will not pose a danger to the community.
Defense counsel should be prepared to convince the court that the terms and conditions of supervisory treatment will be adequate to protect the public and will benefit the defendant by serving to correct any dependence on or use of controlled substances. For applicable caselaw on conditional discharges, see State v. Sanders, N.J. Super. 515 (App. Div. 1979), State v. Banks, 157 N.J. Super. 442 (Law Div. 1978), State v. Grochulski, 133 N.J. Super. 586 (Law Div. 1975), State v. Teitelbaum, 160 N.J. Super. 450 (Law Div. 1978), State v. DiLuzio, 130 N.J. Super. 220 (Law Div. 1974). The defendant must be required to pay a $45.00 application fee, plus the mandatory $500.00 DEDR penalty. The court further has the option to suspend a defendant's driver's license for between six months and two years.
The conditional discharge period is also between six months and two years. If the defendant is convicted of a drug offense during the CD period or violates the conditions set by the court, the prosecution resumes. The defendant may even apply for a conditional discharge after he/she is found guilty, but before sentence is imposed. If the CD is granted at this point in the proceeding, the 6 to 24 month license suspension is mandatory.
Drug related offenses carry substantial penalties which will effect a client for the rest of his life. The space limits of this article do not allow detailed explanation of the extensive caselaw on controlled dangerous substances. Members of the Bar must accept the challenge and apply their legal talents to ensure that the rights of their clients are protected.
CONCLUSION
Pre-trial intervention is an excellent opportunity for someone to avoid a trial and conviction. If facing criminal charges, quickly sit down with a criminal attorney to protect your rights. If accepted into Pre-Trial Intervention, Motions to Suppress Evidence and other Motions are put on hold.
PTI law:
2C:43-12. Supervisory treatment - pretrial intervention 2C:43-12. Supervisory Treatment--Pretrial Intervention. a. Public policy. The purpose of sections 2C:43-12 through 2C:43-22 of this chapter is to effectuate a Statewide program of Pretrial Intervention. It is the policy of the State of New Jersey that supervisory treatment should ordinarily be limited to persons who have not previously been convicted of any criminal offense under the laws of New Jersey, or under any criminal law of the United States, or any other state when supervisory treatment would:
(1) Provide applicants, on an equal basis, with opportunities to avoid ordinary prosecution by receiving early rehabilitative services or supervision, when such services or supervision can reasonably be expected to deter future criminal behavior by an applicant, and when there is apparent causal connection between the offense charged and the rehabilitative or supervisory need, without which cause both the alleged offense and the need to prosecute might not have occurred; or
(2) Provide an alternative to prosecution for applicants who might be harmed by the imposition of criminal sanctions as presently administered, when such an alternative can be expected to serve as sufficient sanction to deter criminal conduct; or
(3) Provide a mechanism for permitting the least burdensome form of prosecution possible for defendants charged with "victimless" offenses; or
(4) Provide assistance to criminal calendars in order to focus expenditure of criminal justice resources on matters involving serious criminality and severe correctional problems; or
(5) Provide deterrence of future criminal or disorderly behavior by an applicant in a program of supervisory treatment.
b. Admission of an applicant into a program of supervisory treatment shall be measured according to the applicant's amenability to correction, responsiveness to rehabilitation and the nature of the offense.
c. The decision and reasons therefor made by the designated judges (or assignment judges), prosecutors and program directors in granting or denying applications for supervisory treatment, in recommending and ordering termination from the program or dismissal of charges, in all cases shall be reduced to writing and disclosed to the applicant.
d. If an applicant desires to challenge the decision of the prosecutor or program director not to recommend enrollment in a program of supervisory treatment the proceedings prescribed under section 14 shall be followed.
e. Referral. At any time prior to trial but after the filing of a criminal complaint, or the filing of an accusation or the return of an indictment, with the consent of the prosecutor and upon written recommendation of the program director, the assignment judge or a judge designated by him may postpone all further proceedings against an applicant and refer said applicant to a program of supervisory treatment approved by the Supreme Court. Prosecutors and program directors shall consider in formulating their recommendation of an applicant's participation in a supervisory treatment program, among others, the following criteria:
(1) The nature of the offense;
(2) The facts of the case;
(3) The motivation and age of the defendant;
(4) The desire of the complainant or victim to forego prosecution;
(5) The existence of personal problems and character traits which may be related to the applicant's crime and for which services are unavailable within the criminal justice system, or which may be provided more effectively through supervisory treatment and the probability that the causes of criminal behavior can be controlled by proper treatment;
(6) The likelihood that the applicant's crime is related to a condition or situation that would be conducive to change through his participation in supervisory treatment;
(7) The needs and interests of the victim and society;
(8) The extent to which the applicant's crime constitutes part of a continuing pattern of anti-social behavior;
(9) The applicant's record of criminal and penal violations and the extent to which he may present a substantial danger to others;
(10) Whether or not the crime is of an assaultive or violent nature, whether in the criminal act itself or in the possible injurious consequences of such behavior;
(11) Consideration of whether or not prosecution would exacerbate the social problem that led to the applicant's criminal act;
(12) The history of the use of physical violence toward others;
(13) Any involvement of the applicant with organized crime;
(14) Whether or not the crime is of such a nature that the value of supervisory treatment would be outweighed by the public need for prosecution;
(15) Whether or not the applicant's involvement with other people in the crime charged or in other crime is such that the interest of the State would be best served by processing his case through traditional criminal justice system procedures;
(16) Whether or not the applicant's participation in pretrial intervention will adversely affect the prosecution of codefendants; and
(17) Whether or not the harm done to society by abandoning criminal prosecution would outweigh the benefits to society from channeling an offender into a supervisory treatment program.
f. Review of Supervisory Treatment Applications; Procedure Upon Denial. Each applicant for supervisory treatment shall be entitled to full and fair consideration of his application. If an application is denied, the program director or the prosecutor shall precisely state his findings and conclusion which shall include the facts upon which the application is based and the reasons offered for the denial. If the applicant desires to challenge the decision of a program director not to recommend, or of a prosecutor not to consent to, enrollment into a supervisory treatment program, a motion shall be filed before the designated judge (or assignment judge) authorized pursuant to the rules of court to enter orders.
g. Limitations. Supervisory treatment may occur only once with respect to any defendant and any person who has previously received supervisory treatment under section 27 of P.L.1970, c.226 (C.24:21-27), shall not be eligible for supervisory treatment under this section. However, supervisory treatment, as provided herein, shall be available to a defendant irrespective of whether the defendant contests his guilt of the charge or charges against him.
h. Termination. Termination of supervisory treatment under this section shall be immediately reported to the assignment judge of the county who shall forward such information to the Administrative Director of the Courts.
i. Appointment of Program Directors; Authorized Referrals. Programs of supervisory treatment and appointment of the program directors require approval by the Supreme Court with the consent of the assignment judge and prosecutor. Referrals of participants from supervisory treatment programs may be to any public or private office or agency, including but not limited to, programs within the probation service of the court, offering counseling or any other social service likely to aid in the rehabilitation of the participant and to deter the commission of other offenses.
j. Health Care Professional Licensing Board Notification. The program director shall promptly notify the State Board of Medical Examiners when a State licensed physician or podiatrist has been enrolled in a supervisory treatment program after he has been charged with an offense involving drugs or alcohol.
Amended 1979, c.178, s.88; 1987,c.106,s.14; 1989,c.300,s.22.
2C:43-13. Supervisory treatment procedure 2C:43-13. Supervisory Treatment Procedure a. Agreement. The terms and duration of the supervisory treatment shall be set forth in writing, signed by the prosecutor and agreed to and signed by the participant. Payment of the assessment required by section 2 of P.L.1979, c.396 (C.2C:43-3.1) shall be included as a term of the agreement. If the participant is represented by counsel, defense counsel shall also sign the agreement. Each order of supervisory treatment shall be filed with the county clerk.
b. Charges. During a period of supervisory treatment the charge or charges on which the participant is undergoing supervisory treatment shall be held in an inactive status pending termination of the supervisory treatment pursuant to subsection d. or e. of this section.
c. Period of treatment. Supervisory treatment may be for such period, as determined by the designated judge or the assignment judge, not to exceed three years, provided, however, that the period of supervisory treatment may be shortened or terminated as the program director may determine with the consent of the prosecutor and the approval of the court.
d. Dismissal. Upon completion of supervisory treatment, and with the consent of the prosecutor, the complaint, indictment or accusation against the participant may be dismissed with prejudice.
e. Violation of conditions. Upon violation of the conditions of supervisory treatment, the court shall determine, after summary hearing, whether said violation warrants the participant's dismissal from the supervisory treatment program or modification of the conditions of continued participation in that or another supervisory treatment program. Upon dismissal of the participant from the supervisory treatment program, the charges against the participant may be reactivated and the prosecutor may proceed as though no supervisory treatment had been commenced.
f. Evidence. No statement or other disclosure by a participant undergoing supervisory treatment made or disclosed to the person designated to provide such supervisory treatment shall be disclosed, at any time, to the prosecutor in connection with the charge or charges against the participant, nor shall any such statement or disclosure be admitted as evidence in any civil or criminal proceeding against the participant. Nothing provided herein, however, shall prevent the person providing supervisory treatment from informing the prosecutor, or the court, upon request or otherwise as to whether or not the participant is satisfactorily responding to supervisory treatment.
g. Delay. No participant agreeing to undergo supervisory treatment shall be permitted to complain of a lack of speedy trial for any delay caused by the commencement of supervisory treatment.
A person applying for admission to a program of supervisory treatment shall pay to the court a fee of $75.00. The court shall forward all money collected under this subsection to the treasurer of the county in which the court is located. This money shall be used to defray the cost of juror compensation within that county. A person may apply for a waiver of this fee, by reason of poverty, pursuant to the Rules Governing the Courts of the State of New Jersey. Of the moneys collected under this subsection, $30.00 of each application fee shall be deposited in the temporary reserve fund created by section 25 of P.L.1993, c.275. After December 31, 1994,the $75.00 fee shall be paid to the court, for use by the State.
Amended 1979,c.178,s.89; 1988,c.44,s.15; 1991,c.329,s.5; 1993,c.275,s.15.
2C:43-14. Authority of supreme court The Supreme Court may adopt rules dealing with Supervisory Treatment in accordance with procedures herein set forth.
L.1978, c. 95, s. 2C:43-14, eff. Sept. 1, 1979. 2C:43-15. Presentation of proposed rules at judicial conference 2C:43-15. The subject matter and a tentative draft of a rule or rules proposed to be adopted pursuant to this chapter shall be entered upon the agenda and discussed at a Judicial Conference whose membership shall at least include delegates from the Supreme Court, the Appellate Division of the Superior Court, the judges of the Superior Court, the judges of the municipal courts, the surrogates, the State Bar Association, the county bar associations, the Senate and General Assembly, the Attorney General, the county prosecutors, the law schools of this State, and members of the public.
Amended 1979,c.178,s.90; 1991,c.91,s.145.
2C:43-16. Public announcement of proposed rules; delivery of copies The proposed rule or rules shall be publicly announced by the Supreme Court on September 15 next following such Judicial Conference (or, if such day be a Saturday, Sunday or legal holiday, on the first day thereafter that is not), and the court shall, on the same day, cause true copies thereof to be delivered to the President of the Senate, the Speaker of the General Assembly, and the Governor.
L.1978, c. 95, s. 2C:43-16, eff. Sept. 1, 1979.
2C:43-17. Effective date of rules; rules subject to cancellation by joint resolution The rule or rules so announced and delivered shall take effect on July 1 next following; provided, however, that all such rules shall remain subject to cancellation at any time up to such effective date by joint resolution to that effect adopted by the Senate and General Assembly and signed by the Governor.
L.1978, c. 95, s. 2C:43-17, eff. Sept. 1, 1979. 2C:43-18. Change or cancellation of rules by statute or adoption of subsequent rules Any rule or rules so proposed or adopted shall be subject to change or cancellation at any time by statute or by a subsequent rule adopted pursuant to this chapter.
L.1978, c. 95, s. 2C:43-18, eff. Sept. 1, 1979. Amended by L.1979, c. 178, s. 91, eff. Sept. 1, 1979.
2C:43-19. Adoption of rules at such time, or with such effective date, or without presentation at judicial conference, as may be provided in joint resolution By joint resolution adopted by the Senate and General Assembly and signed by the Governor with respect to a particular rule or rules therein specified the Supreme Court may adopt such rule or rules at such time or times, or with such effective date, or without presentation at a Judicial Conference, as may be provided in the joint resolution.
L.1978, c. 95, s. 2C:43-19, eff. Sept. 1, 1979.
2C:43-20. Reduction or elimination of time during which rules may be canceled by joint resolution By joint resolution adopted by the Senate and General Assembly and signed by the Governor with respect to a particular rule or rules therein specified, the period of time as provided in 2C:43-17 during which the same may be canceled by joint resolution may be reduced or eliminated.
L.1978, c. 95, s. 2C:43-20, eff. Sept. 1, 1979. 2C:43-21. Index and reports a. Index. The Administrative Director of the Courts shall establish and maintain an index of cases in which applications for supervisory treatment have been made and such index shall indicate the dispositions of those applications.
b. Reports. At the termination of the year in which this chapter takes effect and at the termination of each calendar year thereafter, for a period of 5 years, the assignment judge for each county shall report the results of the rehabilitative effort prescribed in this act to the Administrative Director of the Courts. The report shall include a description of offenses for which supervisory treatment was prescribed, the type of treatment to which defendants were assigned, the number and types of criminal acts, if any, committed by persons during their period of supervisory treatment, the number of persons successfully completing supervisory treatment and against whom charges were dismissed, and, where possible, the number and types of criminal acts, if any, committed by such persons subsequent to successful completion of supervisory treatment.
c. Evaluation. The Administrative Director of the Courts shall, from time to time as he deems necessary, or upon request from the Legislature, evaluate the program of supervisory treatment on the basis of reports made to him by county and municipal prosecutors. He shall submit his evaluation, together with special findings and recommendations to the Legislature.
d. No order of expungement or sealing shall affect any entry in the index or any registry of such information established by the Administrative Office of the Courts.
L.1978, c. 95, s. 2C:43-21, eff. Sept. 1, 1979. Amended by L.1979, c. 178, s. 92, eff. Sept. 1, 1979.
2C:43-22. Disclaimer Nothing contained in this act is intended to supersede, repeal or modify the authority granted and procedure prescribed under section 27 of P.L.1970, c. 226 (C. 24:21-27).
L.1978, c. 95, s. 2C:43-22, eff. Sept. 1, 1979.
Subscribe to:
Posts (Atom)