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
Thursday, May 22, 2008
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.
Marijuana Defense 2C:35-10
Marijuana Defense 2C:35-10
Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey.
The Municipal Courts of New Jersey have jurisdiction to hear the following drug-related offenses:
NJSA 2C:5-10(a)(4), possession of 50g or less of marijuana or 5g or less of hashish;
NJSA 2C:35-10(b), using or being under the influence of CDS;
NJSA 2C:35-10(c), failure to deliver CDS to police;
NJSA 2C:36-2, possession of drug paraphernalia
Violation of these statutes constitute disorderly person offenses. If convicted, the court may impose a $500.00 Drug Enforcement Reduction penalty and a $50.00 lab fee for each CDS charge. The court has discretion to fine a defendant up to $1,000 and/or incarceration for up to six months. The $50.00 VCCB penalty also must be imposed.
Moreover, the court must suspend the defendant's driver's license for a time period between six months and two years. In addition, probation for up to two years, drug counseling, periodic urine testing, alcohol and/or psychiatric counseling and community service may be imposed.
If you elect to initially plead not guilty, your attorney will send a discovery letter/letter of representation to both the Municipal Prosecutor and the Municipal Court Clerk. If you have a drug problem, it is recommended that you attend a substance abuse treatment programs to seek help for any addiction. Proof of attendance of such a program is of benefit at sentencing or in obtaining an application for conditional discharge.
CONDITIONAL DISCHARGE
New Jersey State statute N.J.S.A. 2C: 36A-1 provides that a person not previously convicted of a drug offense and who has not previously been granted "supervisory treatment" under 24:21-27, 2C:43-12 or 2C: 36A-l may apply for a conditional discharge. The court upon notice to the prosecutor and subject to 2C: 36A-l(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 to the court, you 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.
You 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. The defendant must be required to pay a $45.00 application fee, plus the mandatory $500.00 DEDR penalty, and $50.00 lab fee. The court further has the option to suspend a defendant's driver's license 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.
SUPPRESSION MOTION
A timely Motion to Suppress Evidence must be made pursuant to Rule 3:5-7. The court rules have been amended to provide the Suppression Motion can be held directly in the Municipal Court. Your attorney can subpoena witnesses, sometimes even serving a subpoena duces tecum on the arresting officer to compel him to bring to court the object allegedly observed in plain view. Credibility will be tested when the object that was claimed to be in plain view inside a car is actually only one-half inch long. Cross-examination is very important.
PRE-TRIAL
The Municipal Court prosecutor is responsible for providing discovery. Rules 3:13-3, 7:4-2, State v Polasky, N.J. Super. 549 (Law Div. 1986); State v Tull, 234 N.J. Super. 486 (Law Div. 1989); State v Ford, 240 N.J. Super. 44 (App. Div. 1990). The State must prove the substance seized was a controlled dangerous substance (CDS).
To prove the substance is CDS, either the lab technician who examined the substance must be called testify, or the State will have to admit the lab certificate prepared pursuant to N.J.S.A. 2C:35-19. If the State intends to introduce the lab certificate at the trial, a notice of an intent to proffer that certificate and all reports relating to the analysis of the CDS shall be served on defense counsel at least 20 days before the proceeding begins. This includes an actual copy of the lab certificate.
Within 10 days of receipt, the Defense counsel must notify the Prosecutor in writing. This will not only alert the Prosecutor to the Defendant's objections concerning the admission of the lab certificate into evidence, but also set forth grounds for the objection, 2C:35-19c. Failure by defense counsel to timely object shall constitute a waiver of any objection to the certificate, thus, the certificate will be submitted into evidence.
THE TRIAL
The burden of primary possession/constructive possession remains on the State. Plea bargaining is not permitted in Municipal Court CDS cases (while it is available in such varied charges as murder, careless driving, or the burning of old tires). The State must prove knowledge or purpose 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. Purpose means it was defendant's conscious intention to obtain or possess the item while being aware of its character. Knowledge of the character of the substance may be inferred from the circumstances. 33 N.J. Practice Criminal Law & Procedure (Miller) Sec. 378 p. 563 (2nd Ed 1990).
If actual possession cannot be demonstrated, defendant's constructive possession may sometimes be shown by proof that the narcotics were subject to dominion and control. If two or more persons share actual or constructive possession, then their possession is joint. However, mere presence on premises where CDS is found is not sufficient, in itself, to justify an inference that a particular defendant was in sole or joint possession of the substance. State v McMenamin 133 N.J. Super. 521,S24 (App. Div. 1975).
In State v. Shipp, 216 N.J. Super. 662,666 (App. Div. 1987), it was held that there was insufficient evidence that the defendant, a passenger in the front seat, had constructive possession of CDS secretly contained in envelopes in a vinyl bag resting on the back seat next to another passenger in the car.
In addition to establishing if the item seized is a CDS through either a lab report or the State Police chemist, the State must establish the chain of custody. The prosecutor's witness will call witnesses to prove the location of the seized drugs from the moment of initial seizure to the time of the testing of the illegal drug.
If the state will be attempting to introduce a confession or other incriminating statements, defense counsel may request on evidence rule 8 hearing to determine if the requirements of Miranda v. Arizona 384 US. 436 (1966) have been violated. If the defendant elects to take the stand, defense counsel must be certain that he testifies with complete candor and does not try to embellish his protestations of innocence.
CONCLUSION
Drug related offenses carry substantial penalties which will effect a person 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. Do not permit drug use and you will not have to worry about the substantial penalties.
New Drug Possession Law:
2C:35-10 Possession, use or being under the influence, or failure to make lawful disposition
2C:35-10. Possession, Use or Being Under the Influence, or Failure to Make Lawful Disposition.
a. It is unlawful for any person, knowingly or purposely, to obtain, or to possess, actually or constructively, a controlled dangerous substance or controlled substance analog, unless the substance was obtained directly, or pursuant to a valid prescription or order form from a practitioner, while acting in the course of his professional practice, or except as otherwise authorized by P.L.1970, c.226 (C.24:21-1 et seq.). Any person who violates this section with respect to:
(1) A controlled dangerous substance, or its analog, classified in Schedule I, II, III or IV other than those specifically covered in this section, 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 $35,000.00 may be imposed;
(2) Any controlled dangerous substance, or its analog, classified in Schedule V, 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 $15,000.00 may be imposed;
(3) Possession of more than 50 grams of marijuana, including any adulterants or dilutants, or more than five grams of hashish 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; or
(4) Possession of 50 grams or less of marijuana, including any adulterants or dilutants, or five grams or less of hashish is a disorderly person.
Any person who commits any offense defined in this section while on any property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of any such school property or a school bus, or while on any school bus, and who is not sentenced to a term of imprisonment, shall, in addition to any other sentence which the court may impose, be required to perform not less than 100 hours of community service.
b. Any person who uses or who is under the influence of any controlled dangerous substance, or its analog, for a purpose other than the treatment of sickness or injury as lawfully prescribed or administered by a physician is a disorderly person.
In a prosecution under this subsection, it shall not be necessary for the State to prove that the accused did use or was under the influence of any specific drug, but it shall be sufficient for a conviction under this subsection for the State to prove that the accused did use or was under the influence of some controlled dangerous substance, counterfeit controlled dangerous substance, or controlled substance analog, by proving that the accused did manifest physical and physiological symptoms or reactions caused by the use of any controlled dangerous substance or controlled substance analog.
c. Any person who knowingly obtains or possesses a controlled dangerous substance or controlled substance analog in violation of subsection a. of this section and who fails to voluntarily deliver the substance to the nearest law enforcement officer is guilty of a disorderly persons offense. Nothing in this subsection shall be construed to preclude a prosecution or conviction for any other offense defined in this title or any other statute.
Amended 1988, c.44, s.5; 1997, c.181, s.6.
2C:35-10.2 Possession, etc. of gamma hydroxybutyrate; penalties 4. a. It is a crime of the third degree for any person, knowingly or purposely, to obtain, or to possess, gamma hydroxybutyrate unless the substance was obtained directly, or pursuant to a valid prescription or order form from a practitioner, while acting in the course of his professional practice, or except as otherwise authorized by P.L.1970, c.226 (C.24:21-1 et seq.).
b. Notwithstanding the provisions of N.J.S.2C:43-3 or any other law, a fine of up to $100,000.00 may be imposed upon a person who violates this section.
L.1997,c. 194, s.4.
2C:35-10.3 Possession, etc. of flunitrazepam; penalties 6. a. It is a crime of the third degree for any person, knowingly or purposely, to obtain, or to possess, flunitrazepam, unless the substance was obtained directly, or pursuant to a valid prescription or order form from a practitioner, while acting in the course of his professional practice, or except as otherwise authorized by P.L.1970, c.226 (C.24:21-1 et seq.).
b. Notwithstanding the provisions of N.J.S.2C:43-3 or any other law, a fine of up to $100,000.00 may be imposed upon a person who violates this section.
L.1997,c. 194, s.6.
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
FOR POTENTIAL CLIENTS TO CONTACT US DURING NON-BUSINESS HOURS, PLEASE FILL OUT THE FORM.
Name:
Cell Phone:
E-Mail Address
Details of the Case
Agree
By typing " agree" into the box you are confirming that you wish to send your information to the Law Office of Kenneth Vercammen
Receive free NJ Laws Email newsletter with current laws and cases
Telephone Consultation Program
New Article of the Week
Meet with an experienced Attorney to handle your important legal needs.
Please call the office to schedule a confidential "in Office" consultation.
Attorneys are not permitted to provide legal advice by email.
Kenneth Vercammen's Law office represents individuals charged with criminal, drug offenses, and serious traffic violations throughout New Jersey. Our office helps people with traffic/ municipal court tickets including drivers charged with Driving While Intoxicated, Refusal and Driving While Suspended.
Kenneth Vercammen was the NJ State Bar Municipal Court Attorney of the Year and past president of the Middlesex County Municipal Prosecutor's Association.
Criminal and Motor vehicle violations can cost you. You will have to pay fines in court or receive points on your drivers license. An accumulation of too many points, or certain moving violations may require you to pay expensive surcharges to the N.J. DMV [Division of Motor Vehicles] or have your license suspended. Don't give up! The Law Office of Kenneth Vercammen can provide experienced attorney representation for criminal motor vehicle violations.
When your job or driver's license is in jeopardy or you are facing thousands of dollars in fines, DMV surcharges and car insurance increases, you need excellent legal representation. The least expensive attorney is not always the answer. Schedule an appointment if you need experienced legal representation in a traffic/municipal court matter.
Our website www.njlaws.com provides information on traffic offenses we can be retained to represent people. Our website also provides details on jail terms for traffic violations and car insurance eligibility points. Car insurance companies increase rates or drop customers based on moving violations.
Contact the Law Office of
Kenneth Vercammen & Associates, P.C.
at 732-572-0500
for an appointment.
The Law Office cannot provide legal advice or answer legal questions over the phone or by email. Please call the Law office and schedule a confidential "in office" consultation.
Disclaimer This web site is purely a public resource of general New Jersey information (intended, but not promised or guaranteed to be correct, complete, or up-to-date). It is not intended be a source of legal advice, do not rely on information at this site or others in place of the advice of competent counsel. The Law Office of Kenneth Vercammen complies with the New Jersey Rules of Professional Conduct. This web site is not sponsored or associated with any particular linked entity unless specifically stated. The existence of any particular link is simply intended to imply potential interest to the reader, inclusion of a link should not be construed as an endorsement.
Last Revised May 13, 2008
© 2008 Kenneth Vercammen & Associates, P.C.
Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey.
The Municipal Courts of New Jersey have jurisdiction to hear the following drug-related offenses:
NJSA 2C:5-10(a)(4), possession of 50g or less of marijuana or 5g or less of hashish;
NJSA 2C:35-10(b), using or being under the influence of CDS;
NJSA 2C:35-10(c), failure to deliver CDS to police;
NJSA 2C:36-2, possession of drug paraphernalia
Violation of these statutes constitute disorderly person offenses. If convicted, the court may impose a $500.00 Drug Enforcement Reduction penalty and a $50.00 lab fee for each CDS charge. The court has discretion to fine a defendant up to $1,000 and/or incarceration for up to six months. The $50.00 VCCB penalty also must be imposed.
Moreover, the court must suspend the defendant's driver's license for a time period between six months and two years. In addition, probation for up to two years, drug counseling, periodic urine testing, alcohol and/or psychiatric counseling and community service may be imposed.
If you elect to initially plead not guilty, your attorney will send a discovery letter/letter of representation to both the Municipal Prosecutor and the Municipal Court Clerk. If you have a drug problem, it is recommended that you attend a substance abuse treatment programs to seek help for any addiction. Proof of attendance of such a program is of benefit at sentencing or in obtaining an application for conditional discharge.
CONDITIONAL DISCHARGE
New Jersey State statute N.J.S.A. 2C: 36A-1 provides that a person not previously convicted of a drug offense and who has not previously been granted "supervisory treatment" under 24:21-27, 2C:43-12 or 2C: 36A-l may apply for a conditional discharge. The court upon notice to the prosecutor and subject to 2C: 36A-l(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 to the court, you 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.
You 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. The defendant must be required to pay a $45.00 application fee, plus the mandatory $500.00 DEDR penalty, and $50.00 lab fee. The court further has the option to suspend a defendant's driver's license 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.
SUPPRESSION MOTION
A timely Motion to Suppress Evidence must be made pursuant to Rule 3:5-7. The court rules have been amended to provide the Suppression Motion can be held directly in the Municipal Court. Your attorney can subpoena witnesses, sometimes even serving a subpoena duces tecum on the arresting officer to compel him to bring to court the object allegedly observed in plain view. Credibility will be tested when the object that was claimed to be in plain view inside a car is actually only one-half inch long. Cross-examination is very important.
PRE-TRIAL
The Municipal Court prosecutor is responsible for providing discovery. Rules 3:13-3, 7:4-2, State v Polasky, N.J. Super. 549 (Law Div. 1986); State v Tull, 234 N.J. Super. 486 (Law Div. 1989); State v Ford, 240 N.J. Super. 44 (App. Div. 1990). The State must prove the substance seized was a controlled dangerous substance (CDS).
To prove the substance is CDS, either the lab technician who examined the substance must be called testify, or the State will have to admit the lab certificate prepared pursuant to N.J.S.A. 2C:35-19. If the State intends to introduce the lab certificate at the trial, a notice of an intent to proffer that certificate and all reports relating to the analysis of the CDS shall be served on defense counsel at least 20 days before the proceeding begins. This includes an actual copy of the lab certificate.
Within 10 days of receipt, the Defense counsel must notify the Prosecutor in writing. This will not only alert the Prosecutor to the Defendant's objections concerning the admission of the lab certificate into evidence, but also set forth grounds for the objection, 2C:35-19c. Failure by defense counsel to timely object shall constitute a waiver of any objection to the certificate, thus, the certificate will be submitted into evidence.
THE TRIAL
The burden of primary possession/constructive possession remains on the State. Plea bargaining is not permitted in Municipal Court CDS cases (while it is available in such varied charges as murder, careless driving, or the burning of old tires). The State must prove knowledge or purpose 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. Purpose means it was defendant's conscious intention to obtain or possess the item while being aware of its character. Knowledge of the character of the substance may be inferred from the circumstances. 33 N.J. Practice Criminal Law & Procedure (Miller) Sec. 378 p. 563 (2nd Ed 1990).
If actual possession cannot be demonstrated, defendant's constructive possession may sometimes be shown by proof that the narcotics were subject to dominion and control. If two or more persons share actual or constructive possession, then their possession is joint. However, mere presence on premises where CDS is found is not sufficient, in itself, to justify an inference that a particular defendant was in sole or joint possession of the substance. State v McMenamin 133 N.J. Super. 521,S24 (App. Div. 1975).
In State v. Shipp, 216 N.J. Super. 662,666 (App. Div. 1987), it was held that there was insufficient evidence that the defendant, a passenger in the front seat, had constructive possession of CDS secretly contained in envelopes in a vinyl bag resting on the back seat next to another passenger in the car.
In addition to establishing if the item seized is a CDS through either a lab report or the State Police chemist, the State must establish the chain of custody. The prosecutor's witness will call witnesses to prove the location of the seized drugs from the moment of initial seizure to the time of the testing of the illegal drug.
If the state will be attempting to introduce a confession or other incriminating statements, defense counsel may request on evidence rule 8 hearing to determine if the requirements of Miranda v. Arizona 384 US. 436 (1966) have been violated. If the defendant elects to take the stand, defense counsel must be certain that he testifies with complete candor and does not try to embellish his protestations of innocence.
CONCLUSION
Drug related offenses carry substantial penalties which will effect a person 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. Do not permit drug use and you will not have to worry about the substantial penalties.
New Drug Possession Law:
2C:35-10 Possession, use or being under the influence, or failure to make lawful disposition
2C:35-10. Possession, Use or Being Under the Influence, or Failure to Make Lawful Disposition.
a. It is unlawful for any person, knowingly or purposely, to obtain, or to possess, actually or constructively, a controlled dangerous substance or controlled substance analog, unless the substance was obtained directly, or pursuant to a valid prescription or order form from a practitioner, while acting in the course of his professional practice, or except as otherwise authorized by P.L.1970, c.226 (C.24:21-1 et seq.). Any person who violates this section with respect to:
(1) A controlled dangerous substance, or its analog, classified in Schedule I, II, III or IV other than those specifically covered in this section, 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 $35,000.00 may be imposed;
(2) Any controlled dangerous substance, or its analog, classified in Schedule V, 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 $15,000.00 may be imposed;
(3) Possession of more than 50 grams of marijuana, including any adulterants or dilutants, or more than five grams of hashish 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; or
(4) Possession of 50 grams or less of marijuana, including any adulterants or dilutants, or five grams or less of hashish is a disorderly person.
Any person who commits any offense defined in this section while on any property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of any such school property or a school bus, or while on any school bus, and who is not sentenced to a term of imprisonment, shall, in addition to any other sentence which the court may impose, be required to perform not less than 100 hours of community service.
b. Any person who uses or who is under the influence of any controlled dangerous substance, or its analog, for a purpose other than the treatment of sickness or injury as lawfully prescribed or administered by a physician is a disorderly person.
In a prosecution under this subsection, it shall not be necessary for the State to prove that the accused did use or was under the influence of any specific drug, but it shall be sufficient for a conviction under this subsection for the State to prove that the accused did use or was under the influence of some controlled dangerous substance, counterfeit controlled dangerous substance, or controlled substance analog, by proving that the accused did manifest physical and physiological symptoms or reactions caused by the use of any controlled dangerous substance or controlled substance analog.
c. Any person who knowingly obtains or possesses a controlled dangerous substance or controlled substance analog in violation of subsection a. of this section and who fails to voluntarily deliver the substance to the nearest law enforcement officer is guilty of a disorderly persons offense. Nothing in this subsection shall be construed to preclude a prosecution or conviction for any other offense defined in this title or any other statute.
Amended 1988, c.44, s.5; 1997, c.181, s.6.
2C:35-10.2 Possession, etc. of gamma hydroxybutyrate; penalties 4. a. It is a crime of the third degree for any person, knowingly or purposely, to obtain, or to possess, gamma hydroxybutyrate unless the substance was obtained directly, or pursuant to a valid prescription or order form from a practitioner, while acting in the course of his professional practice, or except as otherwise authorized by P.L.1970, c.226 (C.24:21-1 et seq.).
b. Notwithstanding the provisions of N.J.S.2C:43-3 or any other law, a fine of up to $100,000.00 may be imposed upon a person who violates this section.
L.1997,c. 194, s.4.
2C:35-10.3 Possession, etc. of flunitrazepam; penalties 6. a. It is a crime of the third degree for any person, knowingly or purposely, to obtain, or to possess, flunitrazepam, unless the substance was obtained directly, or pursuant to a valid prescription or order form from a practitioner, while acting in the course of his professional practice, or except as otherwise authorized by P.L.1970, c.226 (C.24:21-1 et seq.).
b. Notwithstanding the provisions of N.J.S.2C:43-3 or any other law, a fine of up to $100,000.00 may be imposed upon a person who violates this section.
L.1997,c. 194, s.6.
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
FOR POTENTIAL CLIENTS TO CONTACT US DURING NON-BUSINESS HOURS, PLEASE FILL OUT THE FORM.
Name:
Cell Phone:
E-Mail Address
Details of the Case
Agree
By typing " agree" into the box you are confirming that you wish to send your information to the Law Office of Kenneth Vercammen
Receive free NJ Laws Email newsletter with current laws and cases
Telephone Consultation Program
New Article of the Week
Meet with an experienced Attorney to handle your important legal needs.
Please call the office to schedule a confidential "in Office" consultation.
Attorneys are not permitted to provide legal advice by email.
Kenneth Vercammen's Law office represents individuals charged with criminal, drug offenses, and serious traffic violations throughout New Jersey. Our office helps people with traffic/ municipal court tickets including drivers charged with Driving While Intoxicated, Refusal and Driving While Suspended.
Kenneth Vercammen was the NJ State Bar Municipal Court Attorney of the Year and past president of the Middlesex County Municipal Prosecutor's Association.
Criminal and Motor vehicle violations can cost you. You will have to pay fines in court or receive points on your drivers license. An accumulation of too many points, or certain moving violations may require you to pay expensive surcharges to the N.J. DMV [Division of Motor Vehicles] or have your license suspended. Don't give up! The Law Office of Kenneth Vercammen can provide experienced attorney representation for criminal motor vehicle violations.
When your job or driver's license is in jeopardy or you are facing thousands of dollars in fines, DMV surcharges and car insurance increases, you need excellent legal representation. The least expensive attorney is not always the answer. Schedule an appointment if you need experienced legal representation in a traffic/municipal court matter.
Our website www.njlaws.com provides information on traffic offenses we can be retained to represent people. Our website also provides details on jail terms for traffic violations and car insurance eligibility points. Car insurance companies increase rates or drop customers based on moving violations.
Contact the Law Office of
Kenneth Vercammen & Associates, P.C.
at 732-572-0500
for an appointment.
The Law Office cannot provide legal advice or answer legal questions over the phone or by email. Please call the Law office and schedule a confidential "in office" consultation.
Disclaimer This web site is purely a public resource of general New Jersey information (intended, but not promised or guaranteed to be correct, complete, or up-to-date). It is not intended be a source of legal advice, do not rely on information at this site or others in place of the advice of competent counsel. The Law Office of Kenneth Vercammen complies with the New Jersey Rules of Professional Conduct. This web site is not sponsored or associated with any particular linked entity unless specifically stated. The existence of any particular link is simply intended to imply potential interest to the reader, inclusion of a link should not be construed as an endorsement.
Last Revised May 13, 2008
© 2008 Kenneth Vercammen & Associates, P.C.
Hot Topics in Municipal Court Practice- Forms available
NJSBA Annual Meeting
Trump Taj Mahal Casino Resort
Hot Topics in Municipal Court Practice
Thursday, May 22 2008
8am - 9:30 am Diamond A
Could not attend? Need forms?
Send email to Kenvnjlaws@verizon.net and advise which form you would like. The form will be sent to you within 2 days, or fax us your email address 732-572-0030 fax
Name ___________________
Email ___________________
An overview of the top 25 municipal court cases of the year and interactive discussion of the most current topics in municipal court.
Speakers: Paris P. Eliades, Esq. Daggett Kraemer Eliades Kovach & Ursin, Sparta
Kenneth A. Vercammen, Esq.
Kenneth Vercammen & Associates,
Edison
Past Chair Municipal Court Section
2005 NJSBA Municipal Court Attorney
of the Year
Editor- NJ Municipal Court Law Review
CD with forms and Materials
provided to all attendees!
02 Lt of rep only.doc
02 DISC.doc
02a DISC to DMV.doc
02d Disc_Complainant.doc
03D Retainer-MUN COURT.doc
04 Hearing notice.doc
100 Cross Exam Q-DWI.doc
AG Guidelines binding.doc
Appeal Fee Bill to Client.doc
atty_guidelines_0505.pdf
Bail reduce Mt.doc
Brief post convict vacate plea.doc
Conditional Discharge Pet Cl.doc
constructive poss.doc
Court cannot handle discovery.doc
Crim interview aba.doc
crim- Specific defenses.doc
Defense Affidavit to Client.doc
DISC to Client from Prosecutor.doc
DUI Motions non disc- jury.doc
DWI- Blood defense brief.doc
DWI- expert letter.doc
DWS Fine reduced parking ticket.doc
Expungement recommend.doc
MIRANDA br.doc
More disc br.doc
Mt for Civil Reservation.doc
Mt forSlap.doc
Mt to be Relieved.doc
Mt- Dismiss No disc mun Pros.doc
Mun Ct Interview.doc
MVC_ DMV - Follow-up Hearing.doc
MVC_ DMV points for Atom.doc
No discovery dismiss Brief.doc
No Show in Court.doc
OBJ TO LAB CERT.doc
OPRA Brief Crim.doc
Order mark try or dismiss.doc
Order to be Relieved.doc
Pros- missing abstract.doc
Refusal Brief wrong statement.doc
Storm Cert priv pros.doc
Sup-Miranda.doc
SUPPRESSION MT.doc
SUPPRESSION BRIEF.doc
Chun discovery brief
www.BeNotGuilty.com
Can’t attend? Need forms?
Send email to Kenvnjlaws@verizon.net and the materials will be sent to you within 2 days, or fax us your email address 732-572-0030 fax
Name ___________________
Email ___________________
Trump Taj Mahal Casino Resort
Hot Topics in Municipal Court Practice
Thursday, May 22 2008
8am - 9:30 am Diamond A
Could not attend? Need forms?
Send email to Kenvnjlaws@verizon.net and advise which form you would like. The form will be sent to you within 2 days, or fax us your email address 732-572-0030 fax
Name ___________________
Email ___________________
An overview of the top 25 municipal court cases of the year and interactive discussion of the most current topics in municipal court.
Speakers: Paris P. Eliades, Esq. Daggett Kraemer Eliades Kovach & Ursin, Sparta
Kenneth A. Vercammen, Esq.
Kenneth Vercammen & Associates,
Edison
Past Chair Municipal Court Section
2005 NJSBA Municipal Court Attorney
of the Year
Editor- NJ Municipal Court Law Review
CD with forms and Materials
provided to all attendees!
02 Lt of rep only.doc
02 DISC.doc
02a DISC to DMV.doc
02d Disc_Complainant.doc
03D Retainer-MUN COURT.doc
04 Hearing notice.doc
100 Cross Exam Q-DWI.doc
AG Guidelines binding.doc
Appeal Fee Bill to Client.doc
atty_guidelines_0505.pdf
Bail reduce Mt.doc
Brief post convict vacate plea.doc
Conditional Discharge Pet Cl.doc
constructive poss.doc
Court cannot handle discovery.doc
Crim interview aba.doc
crim- Specific defenses.doc
Defense Affidavit to Client.doc
DISC to Client from Prosecutor.doc
DUI Motions non disc- jury.doc
DWI- Blood defense brief.doc
DWI- expert letter.doc
DWS Fine reduced parking ticket.doc
Expungement recommend.doc
MIRANDA br.doc
More disc br.doc
Mt for Civil Reservation.doc
Mt forSlap.doc
Mt to be Relieved.doc
Mt- Dismiss No disc mun Pros.doc
Mun Ct Interview.doc
MVC_ DMV - Follow-up Hearing.doc
MVC_ DMV points for Atom.doc
No discovery dismiss Brief.doc
No Show in Court.doc
OBJ TO LAB CERT.doc
OPRA Brief Crim.doc
Order mark try or dismiss.doc
Order to be Relieved.doc
Pros- missing abstract.doc
Refusal Brief wrong statement.doc
Storm Cert priv pros.doc
Sup-Miranda.doc
SUPPRESSION MT.doc
SUPPRESSION BRIEF.doc
Chun discovery brief
www.BeNotGuilty.com
Can’t attend? Need forms?
Send email to Kenvnjlaws@verizon.net and the materials will be sent to you within 2 days, or fax us your email address 732-572-0030 fax
Name ___________________
Email ___________________
Saturday, May 10, 2008
Hot Topics in Municipal Court Practice Thursday, May 22 (8 - 9:30 a.m.)
Hot Topics in Municipal Court Practice Thursday, May 22 (8 - 9:30 a.m.)
NJSBA Annual Meeting and Convention.
NJSBA Annual Meeting and Convention Annual Meeting and Convention 2008 Trump Taj Mahal Casino Resort in Atlantic City May 21 - 23. The NJ State Bar Association will hold its 2008 Annual Meeting and Convention at the Trump Taj Mahal Casino Resort, right on the Atlantic City Boardwalk. A favorite location for the NJSBA's annual conference, the boardwalk offers the Atlantic City seaside right outside the doors of the resort. Attend from May 21-22 for education, top speakers and networking with the top legal professionals in the state and your fellow NJSBA members.
Hot Topics in Municipal Court Practice Thursday, May 22 (8 - 9:30 a.m.)
Municipal Court Practice Section NJ Institute for Continuing Legal Education (Municipal Court Practice Track)
Trial Attorney Certification: 1.5 criminal credits pending
NY CLE (Transitional & Non-transitional): 1.5 professional practice credits
PA CLE: 1.5 substantive credits pending ($8 fee payable to ICLE)
An overview of the top 25 municipal court cases of the year and interactive discussion of the most current topics in municipal court.
Speakers: Paris P. Eliades, Esq. - Daggett Kraemer Eliades Kovach & Ursin, Sparta
Kenneth A. Vercammen, Esq. - Kenneth Vercammen & Associates, Edison
http://www.njsba.com/calendar_events/index.cfm?fuseaction=annual_mtg#207
Alcotest Update - State v. Chun
Municipal Court Practice Section NJ Institute for Continuing Legal Education (Municipal Court Practice Track)
Thursday, May 22 (1 - 2:30 p.m.)
Trial Attorney Certification: 1.5 criminal credits pending
NY CLE (Non-transitional): 1.5 professional practice credits
PA CLE: 1.5 substantive credits pending ($8 fee payable to ICLE)
An analysis of the recent Chun discussion and the documentation required in order to admit the Alcotest 7110 into evidence.
Speaker: Jeffrey E. Gold, Esq. Vice Chair, Municipal Court Practice Section Gold & Farrow, PC, Cherry Hill
NJSBA Annual Meeting and Convention.
NJSBA Annual Meeting and Convention Annual Meeting and Convention 2008 Trump Taj Mahal Casino Resort in Atlantic City May 21 - 23. The NJ State Bar Association will hold its 2008 Annual Meeting and Convention at the Trump Taj Mahal Casino Resort, right on the Atlantic City Boardwalk. A favorite location for the NJSBA's annual conference, the boardwalk offers the Atlantic City seaside right outside the doors of the resort. Attend from May 21-22 for education, top speakers and networking with the top legal professionals in the state and your fellow NJSBA members.
Hot Topics in Municipal Court Practice Thursday, May 22 (8 - 9:30 a.m.)
Municipal Court Practice Section NJ Institute for Continuing Legal Education (Municipal Court Practice Track)
Trial Attorney Certification: 1.5 criminal credits pending
NY CLE (Transitional & Non-transitional): 1.5 professional practice credits
PA CLE: 1.5 substantive credits pending ($8 fee payable to ICLE)
An overview of the top 25 municipal court cases of the year and interactive discussion of the most current topics in municipal court.
Speakers: Paris P. Eliades, Esq. - Daggett Kraemer Eliades Kovach & Ursin, Sparta
Kenneth A. Vercammen, Esq. - Kenneth Vercammen & Associates, Edison
http://www.njsba.com/calendar_events/index.cfm?fuseaction=annual_mtg#207
Alcotest Update - State v. Chun
Municipal Court Practice Section NJ Institute for Continuing Legal Education (Municipal Court Practice Track)
Thursday, May 22 (1 - 2:30 p.m.)
Trial Attorney Certification: 1.5 criminal credits pending
NY CLE (Non-transitional): 1.5 professional practice credits
PA CLE: 1.5 substantive credits pending ($8 fee payable to ICLE)
An analysis of the recent Chun discussion and the documentation required in order to admit the Alcotest 7110 into evidence.
Speaker: Jeffrey E. Gold, Esq. Vice Chair, Municipal Court Practice Section Gold & Farrow, PC, Cherry Hill
Saturday, March 01, 2008
Middlesex County Bar Association 3rd Annual Awards Dinner
Middlesex County Bar Association 3rd Annual Awards Dinner
On March 19, 2008, the Middlesex County Bar Association will hold its third annual awards dinner at Sunny Palace Restaurant on Route 18 South in East Brunswick. Awards will be given to bar members in the following areas: Pro Bono; Non-Litigation; Civil Trial Practice; Criminal Trial Practice; and Municipal Court Practice.
The guest speaker will be Hon. Travis L. Francis, AJSC.
The MCBA will pay tribute to these bar members for their significant contributions to their respective practice areas.
The following awards will be given:
-Pro Bono Attorney-of-the Year Henry Gurshman
-Civil Trial Practitioner-of-the-Year John Gorman
-Criminal Trial Attorney-of-the-Year Jim Nolan & Nicole Albert
-Municipal Court Practitioner-of-the-Year Kenneth Vercammen
-Young Lawyer of the Year Kimberly Yonta Aronow
-Transactional Attorney of the Year Michael Schaff
The purpose of the Awards is to recognize attorneys practicing in Middlesex County and adjacent municipalities who devote a significant portion of their law practice to their respective practice areas and exhibit one or more of the following:
- Leadership in the potential candidate’s field of practice;
- Significant, tangible contributions to the Bar, such as participation in educational panels, Bar committees, etc, pertaining to non-litigation issues;
- Contributions to the community and/or charitable endeavors;
- A record promoting participation and involvement in the MCBA and collegiality within the Association; and
- A reputation for personal and professional integrity.
The evening will commence with a cocktail hour (cash bar) at 6:00 p.m. and dinner will be served at 7:00 p.m. The cost to attend is $35 for MCBA Young Lawyers, $40 for MCBA Members and $45 for all others, in advance.
For additional information, contact the Bar Office at (732) 828-3433, ext. 102.
More details at http://www.mcbalaw.com/cde.cfm?event=186648
Sunny Palace
1069 Route 18 South
East Brunswick, NJ 08816
On March 19, 2008, the Middlesex County Bar Association will hold its third annual awards dinner at Sunny Palace Restaurant on Route 18 South in East Brunswick. Awards will be given to bar members in the following areas: Pro Bono; Non-Litigation; Civil Trial Practice; Criminal Trial Practice; and Municipal Court Practice.
The guest speaker will be Hon. Travis L. Francis, AJSC.
The MCBA will pay tribute to these bar members for their significant contributions to their respective practice areas.
The following awards will be given:
-Pro Bono Attorney-of-the Year Henry Gurshman
-Civil Trial Practitioner-of-the-Year John Gorman
-Criminal Trial Attorney-of-the-Year Jim Nolan & Nicole Albert
-Municipal Court Practitioner-of-the-Year Kenneth Vercammen
-Young Lawyer of the Year Kimberly Yonta Aronow
-Transactional Attorney of the Year Michael Schaff
The purpose of the Awards is to recognize attorneys practicing in Middlesex County and adjacent municipalities who devote a significant portion of their law practice to their respective practice areas and exhibit one or more of the following:
- Leadership in the potential candidate’s field of practice;
- Significant, tangible contributions to the Bar, such as participation in educational panels, Bar committees, etc, pertaining to non-litigation issues;
- Contributions to the community and/or charitable endeavors;
- A record promoting participation and involvement in the MCBA and collegiality within the Association; and
- A reputation for personal and professional integrity.
The evening will commence with a cocktail hour (cash bar) at 6:00 p.m. and dinner will be served at 7:00 p.m. The cost to attend is $35 for MCBA Young Lawyers, $40 for MCBA Members and $45 for all others, in advance.
For additional information, contact the Bar Office at (732) 828-3433, ext. 102.
More details at http://www.mcbalaw.com/cde.cfm?event=186648
Sunny Palace
1069 Route 18 South
East Brunswick, NJ 08816
Sunday, November 25, 2007
ABA CRIMINAL LAW COMMITTEE NEWSLETTER Fall 2007
ABA CRIMINAL LAW COMMITTEE NEWSLETTER Fall 2007
ABA General Practice, Solo and Small Firm Division American Bar Association
Brian T Hermanson Ponca City, Oklahoma Chair
(580) 762-0020 bhermanson@oklawhoma.com
Kenneth Vercammen, Esq. Deputy Chair / co- Editor Edison, NJ
In this Issue:
1. Hearsay Not Admissible at Trial based on Crawford Decision
2. Consequences of a Criminal Guilty Plea in Superior Court
____________________________________________________
1. Hearsay Not Admissible at Trial based on Crawford Decision
By Kenneth Vercammen, Esq.
Prior to 2004, in Municipal Court and criminal cases, statements and documents could often be introduced into evidence over defense counsel’s objection. In the landmark decision of Crawford v. Washington. 541 U.S. 36 (2004) the United States Supreme Court ruled that testimonial hearsay may not be admitted against a defendant at trial unless the declarant is unavailable and the defendant has had a prior opportunity for cross examination.
In Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), the United States Supreme Court addressed the protections afforded by the Confrontation Clause. The defendant in Crawford was charged with assault and attempted murder; defendant was convicted of assault. Id. at 38, 124 S. Ct. at 1357, 158 L. Ed. 2d at 184. The trial judge admitted a tape-recorded statement of the defendant's wife, given to police while she was herself a suspect, after the judge found the statement reliable. Id. at 38-40, 124 S. Ct. at 1356-58, 158 L. Ed. 2d at 184-86. The Court held that "[admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation." Id. at 61, 124 S. Ct. at 1370, 158 L. Ed. 2d at 199. "Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty." Id. at 62, 124 S. Ct. at 1371, 158 L. Ed. 2d at 199. The Court reversed defendant's conviction. Id. at 68-69, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203. In Crawford, the Court's express holding applied only to "testimonial" evidence:
Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law — . . . as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. We leave for another day any effort to spell out a comprehensive definition of "testimonial." [541 U.S. at 68, 124 S. Ct. at 1374, 158 L. Ed 2d at 203 (footnote omitted)].
In Crawford: “the United States Supreme Court sharply departed from its prior view of how hearsay exceptions could be reconciled with the Confrontation Clause of the Sixth Amendment. The Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him.” Before Crawford, the Supreme Court had held that hearsay did not offend the Confrontation Clause if the out-of-court statement fell within a “firmly rooted hearsay exception” or bore “particularized guarantees of trustworthiness.” Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 2538, 65 L. Ed. 2d 597, 608 (1980). Now, under Crawford, testimonial statements made by witnesses absent from trial may be “admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” 541 U.S. at 59, 124 S. Ct. at 1369, 158 L. Ed. 2d at 197. In Crawford, the Court did not precisely define “testimonial statements,” but it provided this guidance: “Whatever else the term [testimonial] covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial, and to police interrogations.” 541 U.S. at 68, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203.
The US Supreme Court in 2006 next had the opportunity to determine hearsay issues when the court was petitioned to decide if 911 calls are admissible if the witness will not come to court.
In Davis v. Washington 126 S. Ct. 2266 (2006) the court held 911 Calls Sometimes Admissible and Not Hearsay. The Court elaborated on the meaning of testimonial:
Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
[Id. at ____, 126 S. Ct. at 2273-74, 165 L. Ed. 2d at 237.]
The New Jersey Appellate Division on March 6, 2006 had previously determined that an Eyewitness 911 Call to Report Attack Admissible as an Excited Utterance. State in the Interest of J.A 385 NJ Super. 544 (App. Div. 2006)
In this adjudication of delinquency, the non testifying eyewitness's description of an assailant -- which was made to the police by phone while he witnessed the attack and pursued the fleeing suspect -- was a present sense impression under N.J.R.E. 803(c)(1) and an excited utterance under N.J.R.E. 803(c)(2), and its admission into evidence did not violate the U.S. Supreme Court's decision in Crawford v. Washington. 541 U.S. 36 (2004).
Certification has been granted by the NJ Supreme Court in the J.A. case. The New Jersey Supreme Court is hearing several other appeals on the Crawford admissibility issue.
In State v Buda 389 NJ Super. 241 (App. Div. 2006) the Court held that an excited utterance made by a 3 year old child abuse victim to a DYFS worker at a hospital, although admissible under state evidence law, is inadmissible in this case as a result of evolving federal constitutional jurisprudence under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), and Davis Ed. 2d 224 (2006). Certification to the NJ Supreme Court was also granted on May 21, 2007.
Under Caselaw decided in 1985, a lab certificate was admitted in DWI cases as a business record under N.J.R.E. 803(c)(6) and as a public record under N.J.R.E. 803(c)(8).
In State v. Berezansky 386 NJ Super. 84 (App. Div. 2006) there was a challenge to the admissibility of a DWI blood test result. The court held the Chemist’s Testimony is Required in DWI Blood Case if an objection is filed by the defense.
Based on the Crawford decision, the Appellate Division in Berezansky determined that a conviction for driving while intoxicated based on a blood test had to be reversed and remanded for a new trial because the defendant’s right of confrontation was violated by admitting into evidence a lab certificate that attested to his blood alcohol content without giving him the opportunity to cross- examine the chemist who analyzed his blood sample and prepared the certificate. Crawford v. Washington requires state to introduce live testimony by the chemist in blood cases.
The Court rejected the State's reliance upon the business record or government record exceptions to the hearsay rule to permit the admission of the lab certificate. The rationale for those exceptions is that such a document is likely to be reliable because it was prepared and preserved in the ordinary course of the operation of a business or governmental entity, and not created primarily as evidence for trial. See N.J.R.E. 803(c)(6). See generally Biunno, Current N.J. Rules of Evidence, comment 1 to N.J.R.E. 803(c)(6); comment 2 to N.J.R.E. 803(c)(8) (2005). The certificate at issue is not a record prepared or maintained in the ordinary course of government business; it was prepared specifically in order to prove an element of the crime and offered in lieu of producing the qualified individual who actually performed the test. Here, defendant not only was denied his constitutional right to confront the certificate's preparer, he was not even afforded an adequate opportunity to challenge the certificate's reliability, because the State failed to provide requested documentation regarding the laboratory analysis of the blood. The Court also noted by analogy, N.J.S.A. 2C:35-19c requires the prosecutor to provide a defendant with all documentation relating to a proffered lab certificate as a condition for admission of that certificate attesting to the identification of a controlled dangerous substance.
Certification has been granted in Berezansky.
The next major case to examine the Crawford case was State v. Renshaw 390 NJ Super. 456 (App. Div. 2007). In this case the state introduced a certificate signed by a Nurse who drew blood. The Court held that the admission in evidence of the Uniform Certification for Bodily Specimens Taken in a Medically Acceptable Manner, pursuant to N.J.S.A. 2A: 62A-11, without the opportunity for cross-examination of the nurse who drew the blood, and over the objection of defendant, runs afoul of the right of confrontation protected both by the United States and the New Jersey Constitutions. Therefore, the Nurse Can Be Required to Testify in DWI Blood Case.
Another case where the Court Ruled that Defendant Can Contest DWI Blood Lab Reports As Hearsay was State v. Kent 391 NJ Super. 352 (App. Div. 2007)
Defendant was convicted of DWI following a single-car rollover accident, and the Law Division affirmed his conviction. At the municipal trial, the State placed into evidence, among other proofs, (1) a blood sample certificate pursuant to N.J.S.A. 2A: 62A-11 from a private hospital employee who had extracted blood from defendant and (2) reports from a State Police laboratory that had tested the blood samples. The authors of those hearsay documents did not appear at trial.
The court reaffirmed the holdings in State v. Renshaw, 390 N.J. Super. 456 (App. Div. 2007) (regarding blood sample certificates) and in State v. Berezansky, 385 N.J. Super. 84 (App. Div. 2006) (regarding State Police laboratory reports) concluding that the hearsay documents are "testimonial" under Crawford v. Washington, 541 U.S. 36 (2004), and that defendant was thus deprived of his right of confrontation under the Sixth Amendment.
The court also noted that unless our Supreme Court determines otherwise, the confrontation clause of Article I, Paragraph 10 of the New Jersey Constitution does not appear to independently require such cross-examination beyond current federal precedents interpreting the Sixth Amendment. Additionally, the court recommends that legislative and/or rule-making initiatives be pursued to avoid placing undue testimonial burdens on health care workers and law enforcement personnel who may create documents relevant to drunk driving prosecutions.
However, Defendant's DWI conviction in Renshaw was affirmed on independent grounds, based upon the arresting officer's numerous observations indicative of defendant's intoxication, and defendant's admission of drinking.
In DWI breathalyzer cases, for decades DWI breathalyzer certificates were admitted as an exception to Hearsay Rules. Based on Crawford, the Appellate Division revisited the admissibility of these paper certificates. In State v. Dorman, 393 NJ Super. 28 (App. Div. 2007) the court held Hearsay Rules do not apply to Breathalyzer certs. In this DWI appeal, the court held that notwithstanding the Supreme Court's holding in Crawford v. Washington, 541 U.S. 36, 68-69, 124 S. Ct. 1354, 1374, 158 L. Ed. 2d 177, 203 (2004), a breathalyzer machine certificate of operability offered by the State to meet its burden of proof under State v. Garthe, 1 N.J. 1 (1996), remains admissible as a business record under N.J.R.E. 803(c)(6).
The NJ Supreme Court also granted Certification in unreported cases on the same issue, State v. Sweet, A-0091-05. In Sweet, the Breathalyzer Inspection Certification were also found to be admissible outside of Crawford.
Kenneth A. Vercammen is a Middlesex County trial attorney who has published 125 articles in national and New Jersey publications on business and litigation topics. He often lectures to trial lawyers of the American Bar
Association, New Jersey State Bar Association and Middlesex County Bar Association.
He is a highly regarded lecturer on litigation issues for the American Bar Association, ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published by New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He is the Editor in Chief of the New Jersey Municipal Court Law Review. Mr. Vercammen is a recipient of the NJSBA- YLD Service to the Bar Award.
He has served as a Special Acting Prosecutor in nine different cities and towns in New Jersey and also successfully handled over One thousand Municipal Court and Superior Court matters in the past 12 years.
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 personal injury matters, Municipal Court trials, and contested Probate hearings.
2. Consequences of a Criminal Guilty Plea in Lower criminal courts Court
Some individuals don’t want to spend money to hire an attorney, but instead just plead guilty at their initial court appearance. They should read the following before representing themselves:
1 If you plead guilty you will have a criminal record
2. Before the judge can accept your guilty plea, you will have to stand up in open court and tell the judge what you did that makes you guilty of the particular offense in front of all persons in the courtroom.
3. You can go to jail, pay thousands of dollars in fines, and may be barred from future employment
3. You may not be able to get a job as a teacher, public employee, banking industry, real estate or other state regulated field.
4. On employment applications, you will have to answer yes that you were convicted of a criminal offense.
5. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction. 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 in many states.
6. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation in many states.
7 In many drug cases, the statute requires mandatory driver’s license suspension. New Jersey does not have a special license to go to work or school.
8. 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 in many states.
9. You must pay restitution if the court finds there is a victim who has suffered a loss.
10. 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.
11. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.
The Criminal Law Committee helps to keep solo and small firms members updated on criminal law and procedure. Programs presented by the committee are basic "how to's" on handling your first criminal law case, or answering questions from your clients when criminal law issues arise in the general practice context. We welcome all who wish to participate and accept all suggestions for programming ideas.
Brian T Hermanson Ponca City, OK Chair
(580) 762-0020
bhermanson@oklawhoma.com
Kenneth Vercammen, Esq. Deputy Chair / co- Editor
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
Kenv@njlaws.com
www.BeNotGuilty.com
ABA General Practice, Solo and Small Firm Division American Bar Association
Brian T Hermanson Ponca City, Oklahoma Chair
(580) 762-0020 bhermanson@oklawhoma.com
Kenneth Vercammen, Esq. Deputy Chair / co- Editor Edison, NJ
In this Issue:
1. Hearsay Not Admissible at Trial based on Crawford Decision
2. Consequences of a Criminal Guilty Plea in Superior Court
____________________________________________________
1. Hearsay Not Admissible at Trial based on Crawford Decision
By Kenneth Vercammen, Esq.
Prior to 2004, in Municipal Court and criminal cases, statements and documents could often be introduced into evidence over defense counsel’s objection. In the landmark decision of Crawford v. Washington. 541 U.S. 36 (2004) the United States Supreme Court ruled that testimonial hearsay may not be admitted against a defendant at trial unless the declarant is unavailable and the defendant has had a prior opportunity for cross examination.
In Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), the United States Supreme Court addressed the protections afforded by the Confrontation Clause. The defendant in Crawford was charged with assault and attempted murder; defendant was convicted of assault. Id. at 38, 124 S. Ct. at 1357, 158 L. Ed. 2d at 184. The trial judge admitted a tape-recorded statement of the defendant's wife, given to police while she was herself a suspect, after the judge found the statement reliable. Id. at 38-40, 124 S. Ct. at 1356-58, 158 L. Ed. 2d at 184-86. The Court held that "[admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation." Id. at 61, 124 S. Ct. at 1370, 158 L. Ed. 2d at 199. "Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty." Id. at 62, 124 S. Ct. at 1371, 158 L. Ed. 2d at 199. The Court reversed defendant's conviction. Id. at 68-69, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203. In Crawford, the Court's express holding applied only to "testimonial" evidence:
Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law — . . . as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. We leave for another day any effort to spell out a comprehensive definition of "testimonial." [541 U.S. at 68, 124 S. Ct. at 1374, 158 L. Ed 2d at 203 (footnote omitted)].
In Crawford: “the United States Supreme Court sharply departed from its prior view of how hearsay exceptions could be reconciled with the Confrontation Clause of the Sixth Amendment. The Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him.” Before Crawford, the Supreme Court had held that hearsay did not offend the Confrontation Clause if the out-of-court statement fell within a “firmly rooted hearsay exception” or bore “particularized guarantees of trustworthiness.” Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 2538, 65 L. Ed. 2d 597, 608 (1980). Now, under Crawford, testimonial statements made by witnesses absent from trial may be “admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” 541 U.S. at 59, 124 S. Ct. at 1369, 158 L. Ed. 2d at 197. In Crawford, the Court did not precisely define “testimonial statements,” but it provided this guidance: “Whatever else the term [testimonial] covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial, and to police interrogations.” 541 U.S. at 68, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203.
The US Supreme Court in 2006 next had the opportunity to determine hearsay issues when the court was petitioned to decide if 911 calls are admissible if the witness will not come to court.
In Davis v. Washington 126 S. Ct. 2266 (2006) the court held 911 Calls Sometimes Admissible and Not Hearsay. The Court elaborated on the meaning of testimonial:
Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
[Id. at ____, 126 S. Ct. at 2273-74, 165 L. Ed. 2d at 237.]
The New Jersey Appellate Division on March 6, 2006 had previously determined that an Eyewitness 911 Call to Report Attack Admissible as an Excited Utterance. State in the Interest of J.A 385 NJ Super. 544 (App. Div. 2006)
In this adjudication of delinquency, the non testifying eyewitness's description of an assailant -- which was made to the police by phone while he witnessed the attack and pursued the fleeing suspect -- was a present sense impression under N.J.R.E. 803(c)(1) and an excited utterance under N.J.R.E. 803(c)(2), and its admission into evidence did not violate the U.S. Supreme Court's decision in Crawford v. Washington. 541 U.S. 36 (2004).
Certification has been granted by the NJ Supreme Court in the J.A. case. The New Jersey Supreme Court is hearing several other appeals on the Crawford admissibility issue.
In State v Buda 389 NJ Super. 241 (App. Div. 2006) the Court held that an excited utterance made by a 3 year old child abuse victim to a DYFS worker at a hospital, although admissible under state evidence law, is inadmissible in this case as a result of evolving federal constitutional jurisprudence under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), and Davis Ed. 2d 224 (2006). Certification to the NJ Supreme Court was also granted on May 21, 2007.
Under Caselaw decided in 1985, a lab certificate was admitted in DWI cases as a business record under N.J.R.E. 803(c)(6) and as a public record under N.J.R.E. 803(c)(8).
In State v. Berezansky 386 NJ Super. 84 (App. Div. 2006) there was a challenge to the admissibility of a DWI blood test result. The court held the Chemist’s Testimony is Required in DWI Blood Case if an objection is filed by the defense.
Based on the Crawford decision, the Appellate Division in Berezansky determined that a conviction for driving while intoxicated based on a blood test had to be reversed and remanded for a new trial because the defendant’s right of confrontation was violated by admitting into evidence a lab certificate that attested to his blood alcohol content without giving him the opportunity to cross- examine the chemist who analyzed his blood sample and prepared the certificate. Crawford v. Washington requires state to introduce live testimony by the chemist in blood cases.
The Court rejected the State's reliance upon the business record or government record exceptions to the hearsay rule to permit the admission of the lab certificate. The rationale for those exceptions is that such a document is likely to be reliable because it was prepared and preserved in the ordinary course of the operation of a business or governmental entity, and not created primarily as evidence for trial. See N.J.R.E. 803(c)(6). See generally Biunno, Current N.J. Rules of Evidence, comment 1 to N.J.R.E. 803(c)(6); comment 2 to N.J.R.E. 803(c)(8) (2005). The certificate at issue is not a record prepared or maintained in the ordinary course of government business; it was prepared specifically in order to prove an element of the crime and offered in lieu of producing the qualified individual who actually performed the test. Here, defendant not only was denied his constitutional right to confront the certificate's preparer, he was not even afforded an adequate opportunity to challenge the certificate's reliability, because the State failed to provide requested documentation regarding the laboratory analysis of the blood. The Court also noted by analogy, N.J.S.A. 2C:35-19c requires the prosecutor to provide a defendant with all documentation relating to a proffered lab certificate as a condition for admission of that certificate attesting to the identification of a controlled dangerous substance.
Certification has been granted in Berezansky.
The next major case to examine the Crawford case was State v. Renshaw 390 NJ Super. 456 (App. Div. 2007). In this case the state introduced a certificate signed by a Nurse who drew blood. The Court held that the admission in evidence of the Uniform Certification for Bodily Specimens Taken in a Medically Acceptable Manner, pursuant to N.J.S.A. 2A: 62A-11, without the opportunity for cross-examination of the nurse who drew the blood, and over the objection of defendant, runs afoul of the right of confrontation protected both by the United States and the New Jersey Constitutions. Therefore, the Nurse Can Be Required to Testify in DWI Blood Case.
Another case where the Court Ruled that Defendant Can Contest DWI Blood Lab Reports As Hearsay was State v. Kent 391 NJ Super. 352 (App. Div. 2007)
Defendant was convicted of DWI following a single-car rollover accident, and the Law Division affirmed his conviction. At the municipal trial, the State placed into evidence, among other proofs, (1) a blood sample certificate pursuant to N.J.S.A. 2A: 62A-11 from a private hospital employee who had extracted blood from defendant and (2) reports from a State Police laboratory that had tested the blood samples. The authors of those hearsay documents did not appear at trial.
The court reaffirmed the holdings in State v. Renshaw, 390 N.J. Super. 456 (App. Div. 2007) (regarding blood sample certificates) and in State v. Berezansky, 385 N.J. Super. 84 (App. Div. 2006) (regarding State Police laboratory reports) concluding that the hearsay documents are "testimonial" under Crawford v. Washington, 541 U.S. 36 (2004), and that defendant was thus deprived of his right of confrontation under the Sixth Amendment.
The court also noted that unless our Supreme Court determines otherwise, the confrontation clause of Article I, Paragraph 10 of the New Jersey Constitution does not appear to independently require such cross-examination beyond current federal precedents interpreting the Sixth Amendment. Additionally, the court recommends that legislative and/or rule-making initiatives be pursued to avoid placing undue testimonial burdens on health care workers and law enforcement personnel who may create documents relevant to drunk driving prosecutions.
However, Defendant's DWI conviction in Renshaw was affirmed on independent grounds, based upon the arresting officer's numerous observations indicative of defendant's intoxication, and defendant's admission of drinking.
In DWI breathalyzer cases, for decades DWI breathalyzer certificates were admitted as an exception to Hearsay Rules. Based on Crawford, the Appellate Division revisited the admissibility of these paper certificates. In State v. Dorman, 393 NJ Super. 28 (App. Div. 2007) the court held Hearsay Rules do not apply to Breathalyzer certs. In this DWI appeal, the court held that notwithstanding the Supreme Court's holding in Crawford v. Washington, 541 U.S. 36, 68-69, 124 S. Ct. 1354, 1374, 158 L. Ed. 2d 177, 203 (2004), a breathalyzer machine certificate of operability offered by the State to meet its burden of proof under State v. Garthe, 1 N.J. 1 (1996), remains admissible as a business record under N.J.R.E. 803(c)(6).
The NJ Supreme Court also granted Certification in unreported cases on the same issue, State v. Sweet, A-0091-05. In Sweet, the Breathalyzer Inspection Certification were also found to be admissible outside of Crawford.
Kenneth A. Vercammen is a Middlesex County trial attorney who has published 125 articles in national and New Jersey publications on business and litigation topics. He often lectures to trial lawyers of the American Bar
Association, New Jersey State Bar Association and Middlesex County Bar Association.
He is a highly regarded lecturer on litigation issues for the American Bar Association, ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published by New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He is the Editor in Chief of the New Jersey Municipal Court Law Review. Mr. Vercammen is a recipient of the NJSBA- YLD Service to the Bar Award.
He has served as a Special Acting Prosecutor in nine different cities and towns in New Jersey and also successfully handled over One thousand Municipal Court and Superior Court matters in the past 12 years.
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 personal injury matters, Municipal Court trials, and contested Probate hearings.
2. Consequences of a Criminal Guilty Plea in Lower criminal courts Court
Some individuals don’t want to spend money to hire an attorney, but instead just plead guilty at their initial court appearance. They should read the following before representing themselves:
1 If you plead guilty you will have a criminal record
2. Before the judge can accept your guilty plea, you will have to stand up in open court and tell the judge what you did that makes you guilty of the particular offense in front of all persons in the courtroom.
3. You can go to jail, pay thousands of dollars in fines, and may be barred from future employment
3. You may not be able to get a job as a teacher, public employee, banking industry, real estate or other state regulated field.
4. On employment applications, you will have to answer yes that you were convicted of a criminal offense.
5. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction. 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 in many states.
6. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation in many states.
7 In many drug cases, the statute requires mandatory driver’s license suspension. New Jersey does not have a special license to go to work or school.
8. 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 in many states.
9. You must pay restitution if the court finds there is a victim who has suffered a loss.
10. 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.
11. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.
The Criminal Law Committee helps to keep solo and small firms members updated on criminal law and procedure. Programs presented by the committee are basic "how to's" on handling your first criminal law case, or answering questions from your clients when criminal law issues arise in the general practice context. We welcome all who wish to participate and accept all suggestions for programming ideas.
Brian T Hermanson Ponca City, OK Chair
(580) 762-0020
bhermanson@oklawhoma.com
Kenneth Vercammen, Esq. Deputy Chair / co- Editor
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
Kenv@njlaws.com
www.BeNotGuilty.com
Monday, October 22, 2007
Kofi Ries v. Department of Corrections
10-18-07 A-6484-05T2
Pursuant to N.J.S.A. 30:1B-3 and N.J.S.A. 30:4-91.3, the
Commissioner of Corrections maintains authority over adult
offenders committed to state correctional institutions, even at
times when they are physically outside prison walls.
Consequently, the Department of Corrections was authorized to
discipline appellant, who tested positive for cocaine and
opiates upon his return to state prison after escaping from a
halfway house, for violating the Department's regulation *.204
prohibiting the use of controlled dangerous substances. See
N.J.A.C. 10A:4-4.1.
Pursuant to N.J.S.A. 30:1B-3 and N.J.S.A. 30:4-91.3, the
Commissioner of Corrections maintains authority over adult
offenders committed to state correctional institutions, even at
times when they are physically outside prison walls.
Consequently, the Department of Corrections was authorized to
discipline appellant, who tested positive for cocaine and
opiates upon his return to state prison after escaping from a
halfway house, for violating the Department's regulation *.204
prohibiting the use of controlled dangerous substances. See
N.J.A.C. 10A:4-4.1.
Long Branch Housing Authority vs. Toni Villano
10-16-07* A-4617-05T1
A tenant in public housing that is under the control of a
public housing agency may be removed from the leased premises
pursuant to N.J.S.A. 2A:18-61.1e(2) when the tenant
substantially violates a covenant or agreement pertaining to
illegal uses of controlled dangerous substances, provided the
covenant or agreement conforms to applicable federal guidelines.
Moreover, federal law permits a tenant to be evicted from public
housing when a member of the household or guest engages in drugrelated
criminal activity in the leased premises, regardless of
whether the tenant knew or should have known of the illegal
activity. (*Approved for Publication date)
A tenant in public housing that is under the control of a
public housing agency may be removed from the leased premises
pursuant to N.J.S.A. 2A:18-61.1e(2) when the tenant
substantially violates a covenant or agreement pertaining to
illegal uses of controlled dangerous substances, provided the
covenant or agreement conforms to applicable federal guidelines.
Moreover, federal law permits a tenant to be evicted from public
housing when a member of the household or guest engages in drugrelated
criminal activity in the leased premises, regardless of
whether the tenant knew or should have known of the illegal
activity. (*Approved for Publication date)
State v. Jessie D. Chambers
10-15-07* A-6180-04T4
Under N.J.S.A. 2C:35-7.1, the crime of possession of a
CDS with the intent to distribute is elevated from a thirddegree
crime to a second-degree crime if the offense is
committed within 500 feet of a public building. In this
opinion, we conclude that a museum qualifies as a public
building even if it does not maintain regular hours and is only
open to the public upon request.(*Approved for Publication date)
Under N.J.S.A. 2C:35-7.1, the crime of possession of a
CDS with the intent to distribute is elevated from a thirddegree
crime to a second-degree crime if the offense is
committed within 500 feet of a public building. In this
opinion, we conclude that a museum qualifies as a public
building even if it does not maintain regular hours and is only
open to the public upon request.(*Approved for Publication date)
Tuesday, September 25, 2007
State v. Jason G. Meyer
9-19-07 (A-122-05/A-43-06)
“Special probation” under N.J.S.A. 2C:35-14 is a type of
disposition for certain non-violent drug offenders, but it is
not the exclusive route to admission into Drug Court.
Consistent with the Drug Court Manual and the general sentencing
provisions of the Code of Criminal Justice, N.J.S.A. 2C:45-1, a
trial court has discretion to admit non-violent drug-dependent
offenders into Drug Court.
“Special probation” under N.J.S.A. 2C:35-14 is a type of
disposition for certain non-violent drug offenders, but it is
not the exclusive route to admission into Drug Court.
Consistent with the Drug Court Manual and the general sentencing
provisions of the Code of Criminal Justice, N.J.S.A. 2C:45-1, a
trial court has discretion to admit non-violent drug-dependent
offenders into Drug Court.
Monday, August 06, 2007
In the Matter of Expungement Application of G.R.
08-03-07 A-0079-06T1
N.J.S.A. 2C:35-5a(1), criminalizes the knowing or
purposeful possession of a CDS "with intent to manufacture,
distribute or dispense" to another. The statute does not draw a
distinction between distributing or dispensing to another in
exchange for money and a gratuitous transfer of the narcotics.
Either conduct constitutes the crime as defined by N.J.S.A.
2C:35-5a(1). However, for purpose of expungement, it does make
a difference. A sale of CDS is a bar to expungement; but a
transfer for no consideration is not. Therefore, we hold that
the facts must be examined to determine if the underlying
possession of the CDS was with intent to sell, as opposed to
dispense or distribute without a sale.
A judgment of conviction for possession of a CDS "with
intent to dispense or distribute" contrary to N.J.S.A. 2C:35-
5a(1), by itself is not conclusive of intent to sell or intent
to dispense for no consideration. The description of the
offense in the judgment of conviction does not aid the judge in
deciding whether the statutory bar applies in a given situation.
To the extent that State v. P.L., 369 N.J. Super. 291 (App. Div.
2004) makes such a suggestion, we disagree with that opinion.
N.J.S.A. 2C:35-5a(1), criminalizes the knowing or
purposeful possession of a CDS "with intent to manufacture,
distribute or dispense" to another. The statute does not draw a
distinction between distributing or dispensing to another in
exchange for money and a gratuitous transfer of the narcotics.
Either conduct constitutes the crime as defined by N.J.S.A.
2C:35-5a(1). However, for purpose of expungement, it does make
a difference. A sale of CDS is a bar to expungement; but a
transfer for no consideration is not. Therefore, we hold that
the facts must be examined to determine if the underlying
possession of the CDS was with intent to sell, as opposed to
dispense or distribute without a sale.
A judgment of conviction for possession of a CDS "with
intent to dispense or distribute" contrary to N.J.S.A. 2C:35-
5a(1), by itself is not conclusive of intent to sell or intent
to dispense for no consideration. The description of the
offense in the judgment of conviction does not aid the judge in
deciding whether the statutory bar applies in a given situation.
To the extent that State v. P.L., 369 N.J. Super. 291 (App. Div.
2004) makes such a suggestion, we disagree with that opinion.
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