New indictment and new trial order affirmed were state presented wrong lab results.

 STATE OF NEW JERSEY, Plaintiff-Respondent,

v.
STEPHEN A. ZADROGA,

Defendant-Appellant. ________________________

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-4432-19

APPROVED FOR PUBLICATION April 26, 2022 APPELLATE DIVISION

Argued April 4, 2022 – Decided April 26, 2022 Before Judges Sabatino, Rothstadt and Mayer.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 18-07-550.

Peter R. Willis argued1 the cause for appellant (Willis & Novel, LLC, attorneys; Peter R. Willis and Maximillian A. Novel, on the briefs).

Leonardo V. Rinaldi, Assistant Prosecutor, argued the cause for respondent (Esther Suarez, Hudson County Prosecutor, attorney; Stephanie Davis Elson and Colleen Kristan Signorelli, Assistant Prosecutors, on the briefs).

1 Due to travel restrictions, defense counsel participated in the appellate oral argument remotely with his consent. Counsel also accepted and took advantage of the court's invitation to file a supplemental post-argument brief, which the court has duly considered along with the State's responsive supplemental brief.

William P. Cooper-Daub, Deputy Attorney General, argued the cause for amicus curiae Attorney General (Matthew J. Platkin, Acting Attorney General, attorney; William P. Cooper-Daub, of counsel and on the brief).

Scott M. Welfel, Assistant Deputy Public Defender, argued the cause for amicus curiae Office of the Public Defender (Joseph E. Krakora, Public Defender , attorney; Scott M. Welfel, of counsel and on the brief).

The opinion of the court was delivered by SABATINO, P.J.A.D.

This criminal prosecution arises out of a head-on collision that killed a passenger in defendant's car. Defendant, Stephen A. Zagroda, had driven his car into oncoming traffic, and an accident reconstruction expert estimated he had been speeding at over 80 miles per hour in a 25 mile per hour zone at the moment of impact. His blood sample was extracted at a hospital later that day, yielding apparent test results from the State Police laboratory of blood alcohol content ("BAC") well over the legal limit.

A grand jury charged defendant with aggravated manslaughter, death by auto, and three intoxication-based assault offenses. A few days after the ensuing jury trial commenced, and following the testimony of seven witnesses for the

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State, a testifying hospital nurse identified an inconsistency in the lab results.2 That disclosure, in turn, revealed the State had inadvertently misattributed the blood sample of a deceased hospital patient to defendant, which the hospital had mistakenly released, and which the State then failed to authenticate. In addition, it came to light that defendant's own blood sample had been irretrievably lost.

The trial judge declared a mistrial and found that, pursuant to Arizona v. Youngblood, 488 U.S. 51 (1988), the State had acted in bad faith in its misattribution of the blood sample. The judge denied defendant's motion to dismiss all five charges with prejudice, but he did dismiss with prejudice the three counts of the indictment that hinged on defendant's intoxication, and thus his BAC level. Defendant appealed; the State did not cross-appeal the judge's finding of bad faith.

We hold the proper remedy in this situation is to re-present the matter to a new grand jury, solely based on the reckless driving evidence without proof or contentions of defendant's intoxication or impairment. We reject defendant's claim of a double jeopardy violation, as the mistrial was justified on the grounds

2 As the record before us does not include the trial transcripts except for motion proceedings, we rely on the parties' and the trial judge's recitations of the events culminating in the mistrial.

  

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of manifest necessity. In addition, we reject defendant's argument that it is fundamentally unfair to maintain any charges against him.

I.
The unusual circumstances of this appeal arose out of the following facts

and events.
The Collision

On November 16, 2017, at around 2:00 a.m., two cars collided head-on on Paterson Plank Road in Jersey City. One car, an Acura, was driven by Steven Carvache, with Nicole Krygoski in the passenger seat. The other car, a Mazda, was driven by defendant, with Evadne Figueroa in the front passenger seat and Matthew Nierstedt in the back seat.

Following the crash, Carvache, Krygoski, Figueroa, and Nierstedt were all transported to nearby hospitals for treatment from the scene of the accident. Defendant, meanwhile, was first released to the custody of his parents before going into the Jersey City Medical Center ("JCMC") for treatment that same morning. At 3:00 a.m., about an hour after the accident, Nierstedt, defendant's rear passenger, was pronounced dead at the JCMC due to blunt trauma injuries he sustained during the car collision.

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The Grand Jury Proceedings

The State presented its case to a grand jury in June 2018. At the hearing, the prosecutor questioned two police detectives who investigated the collision, Detective Tony Espaillat and Detective Joe Bisone. Much of the grand jury evidence dwelled upon defendant and others drinking alcohol on the night of the collision, and whether the drivers were under the influence at the time of the crash.

Detective Espaillat's Investigation

Detective Espaillat mostly testified about the statements he had taken from witnesses, including the other passengers in defendant's and Carvache's cars. He stated that, following a first visit to the collision site, he went to Christ Hospital where he questioned Krygoski, the passenger in Carvache's car. Krygoski told the detective she worked at Corkscrew Bar in Jersey City and had served Carvache "approximately two to three" twelve-ounce cans of beer earlier the night of the accident before Carvache offered to give her a ride home. Krygoski also told the detective she remembers a "dark-colored vehicle," understood as being defendant's car, going over the double solid lines into her and Carvache's lane just before the collision.

 

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The detective later took a formal statement from Krygoski, who reiterated that she remembered Carvache drinking two twelve-ounce cans of beer at Corkscrew Bar at approximately 1:30 a.m. on November 16. Krygoski stated Carvache did not seem drunk, and that she would not have gotten into a car with him if it appeared otherwise. She accepted his offer of a ride home at about 2:00 a.m.

Krygoski told the detective that she remembered the headlights of another vehicle coming toward them on Paterson Plank Road, that the vehicle appeared to be driving "really, really fast," and that it appeared to be on their side of the center line when the cars collided. Krygoski recalled that Carvache tried to swerve out of the way to avoid the oncoming vehicle, but that "there was limited room since there isn't a shoulder at that location."

Detective Espaillat then discussed Figueroa's police statement. Figueroa worked with defendant's sister and his ex-girlfriend, and she lived in the same building as defendant. She remembered defendant drinking "two or three . . . draft beers and two shots of a dark-colored alcohol[.]" While Figueroa admitted she "did not pay much attention to everyone" that night, she recalled Nierstedt "buying lots of rounds[.]"

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According to Figueroa, she planned on being taken home by defendant, who asked her to first "take a ride with him so he could drive Nierstedt home" to Jersey City. Figueroa accepted the ride from defendant. She told the detective she would not have gotten into his car if she had suspected he was intoxicated. Figueroa stated she was nevertheless "scared" during the ride because defendant was "speeding" and that he and Nierstedt "just laughed at her" when she asked him to slow down.

Figueroa initially told Detective Espaillat that she saw a vehicle— evidently Carvache's—driving toward them and "go over the double solid lines" just before the collision. When pressed about this, Figueroa recanted the allegation about Carvache, but maintained she did not recall defendant driving over the double lines, either.

Detective Espaillat also took a statement from Venicio Rojas, a driver for a charter bus company. Rojas stated he was stopped at a light facing north on Paterson Plank Road at approximately 1:50 a.m., with a Port Authority pickup truck ahead of him, and a black Mazda—defendant's car—behind him.

Rojas recounted that when the light turned green, the Mazda accelerated past Rojas, passing him on the left side "at a high rate of speed." Rojas then

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briefly lost sight of both the Mazda and the Port Authority pickup truck before coming upon the collision site.

According to Rojas, at that point, Rojas got out of the bus to help, and saw defendant "acting crazy" and "punching the rear passenger window to get his friend out of the vehicle[.]" Once police arrived on the scene, Rojas stated he overheard defendant tell them Carvache had lost control of his car, which Rojas then told the officers he believed was inaccurate. Rojas told the officers he thought defendant was drunk "because of the way he was acting." He also stated that when he attempted to prevent defendant from touching Nierstedt, he smelled alcohol.

Detective Espaillat also took a statement from Leon Sergeant, a Port Authority worker who had been riding in the front seat of a Port Authority vehicle the night of the accident. Sergeant stated that defendant tried overtaking their vehicle on the right, "before the [two] lanes merged into one." He explained that he did not see defendant's car again until he and his colleagues came upon the collision, after taking their time driving up the road "because it has a lot of curves[.]" Sergeant also recalled briefly seeing defendant in his car unconscious before coming to and screaming "Mike" (Nierstedt's first name). His colleagues called 9-1-1.

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Detective Espaillat also informed the grand jurors about statements given by defendant's three friends who had accompanied him, Nierstedt, and Figueroa at various bars the evening of November 15. All three friends told Detective Espaillat that defendant, as far as they could recall, had only had approximately one to three beers between about 10:45 p.m. and 1:30 a.m. the night of the accident. They all denied that defendant drank liquor or showed any signs of inebriation that evening, but acknowledged that they themselves had all consumed liquor.

Video Surveillance and Other Evidence of Drinking

Detective Espaillat also informed the grand jurors about video surveillance footage he had obtained from the East LA Bar. The detective testified that defendant could be seen on the video being served two twelve- ounce bottles of beer, one at 10:10 p.m., the second at 10:31 p.m. The video also revealed the group departing East LA Bar at 11:26 p.m. on November 15.

Detective Espaillat further recounted his interview with a bartender at Village Pourhouse in Hoboken, where defendant and his friends had also been that evening. Village Pourhouse did not have a functioning video surveillance system the evening of November 15. The bartender stated that she recalled Nierstedt starting a bar tab with his credit card, ordering a round of drinks and

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shots, and everyone in the group—including defendant—having a shot. She further stated that defendant drank "about three or four" sixteen-ounce draft beers, and "approximately" two shots of whiskey throughout the night.

Detective Espaillat interviewed the manager of the Village Pourhouse, particularly about two bar tab receipts: one for $90 paid with Nierstedt's credit card, the other for $75 paid for in cash by another friend of defendant's. Both tabs were opened around 11:40 p.m. on November 15, and closed out around 2:00 a.m. on November 16. That bar tab included two bottles of beer, seven whiskey shots, a draft beer, and three other $3 drinks.

Detective Espaillat also referred to video surveillance footage collected from the Corkscrew Bar in Jersey City the night of the collision. That footage showed Carvache enter the bar at approximately 1:09 a.m., and him being served twelve-ounce cans of beer upon arrival; again at 1:15 a.m.; again at 1:31 a.m.; and again at 1:45 a.m., for a total of four beers. Carvache is seen on the video leaving the bar with Krygoski at 1:56 a.m.

The Autopsy and the BAC Evidence

Detective Espaillat conveyed to the grand jurors the results of Nierstedt's autopsy. The medical examiner concluded that his cause of death was "blunt trauma injuries of the head" due to the collision.

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The detective testified that a forensic scientist for the State Police, had analyzed blood samples taken from defendant and Carvache. He told the grand jurors that the State lab reported BAC levels of 0.131% for Carvache's sample, and a much-higher 0.376% level for defendant's sample.3

Detective Bisone's Investigation

Detective Bisone, the State's other grand jury witness, was questioned by the prosecutor about the "fatal collision report" he prepared, which he described as a "summary of all supporting documentation, witness interviews, roadway evidence and field evidence." That evidence included hospital treatment reports of the passengers in both defendant's and Carvache's cars, evidence from the collision site, vehicle inspections, and imaging data obtained from defendant's car.

The Black Box Data

Detective Bisone conveyed to the grand jurors the readings collected from defendant's car's "airbag control module," also known as its "black box." According to Bisone, computer data downloaded from the black box revealed that defendant's car had been driving at "85 to 88 miles per hour until

3 We take judicial notice that the legal limit for BAC under the State's drunk driving laws is 0.08%. N.J.S.A. 39:4-50. Hence, the reported BAC for defendant was more than four times that limit.

  

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approximately three seconds prior to impact[,]" which fell to approximately 68 miles per hour at one-and-a-half seconds before impact, and 43 miles per hour at the point of impact.

Detective Bisone noted that black box data was not available from Carvache's car. However, he was able to determine from a reconstruction of the collision that Carvache's car had been driving approximately 27 to 33 miles per hour at the point of impact. He told the grand jurors that the speed limit on Paterson Plank Road at the crash location is 25 miles per hour.

Detective Bisone found liquid splatter documented at the collision site, consistent with the collision occurring "predominately in the southbound lane," meaning in Carvache's lane. Based on photographs of the crash site and the physical evidence in both lanes, Bisone determined that defendant's car, before the impact, had been "straddling the double yellow lines with the front of the [car] halfway over the line[.]" Detective Bisone testified that he had been made aware of both defendant's and Carvache's respective BAC level analyses, the results of which he repeated to the grand jury. He also explained to the grand jurors the "physics" of Paterson Park Road itself, and opined that weather was not a factor in the collision.

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Notably, no officer that reported to the scene of the accident administered field sobriety tests to defendant.

The Indictment

The grand jury returned a five-count indictment against defendant, charging him with, most severely, aggravated manslaughter in the first degree, N.J.S.A. 2C:11-4(a)(1) (count one); and death by auto in the second degree, N.J.S.A. 2C:11-5(a) (count two). Counts three, four, and five charged defendant with victim-specific charges of assault by auto in the third degree, N.J.S.A. 2C:12-1(c)(2), for the injuries respectively sustained by Carvache, Krygoski, and Figueroa. Those three counts charged that defendant drove his car while in violation of N.J.S.A. 39:4-50, which elevates the assault to a third-degree offense, where, as here, serious bodily injury results.

Carvache, the other driver, was not criminally charged.

Defendant's Trial and the Sudden Revelation of the Mistaken BAC Evidence

Defendant's jury trial commenced on July 8, 2019. After seven of the State's witnesses had testified, the State became aware that the blood sample it had submitted into evidence with an associated record of defendant's BAC was not, in fact, collected from defendant. The BAC level of the incorrect sample that was offered by the State was 0.376%, over four times the legal limit.

  

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This stunning revelation emerged during the testimony of Melissa Rosario, R.N., the JCMC emergency room nurse who had collected the blood sample in question. Nurse Rosario testified that she had drawn two vials of blood from defendant. By contrast, the Hudson County Prosecutor’s Office investigative report reflected the State was in possession of five, not two, vials of defendant's blood.

Following an investigation on July 12, 2019, the day after Rosario testified, the State discovered that the five vials of blood it had admitted into evidence had been drawn from another, since-deceased JCMC patient, not from defendant. The prosecutor duly informed the court and defense counsel of this mistake.

Defendant's Motion to Dismiss the Indictment with Prejudice

In the wake of the "wrong blood sample" revelation, defendant moved to dismiss his entire indictment with prejudice. After a hearing on July 15, 2019, the trial judge partially granted defendant's motion, but dismissed the whole indictment without prejudice. The court thereafter declared a mistrial, without objection from either party, and disbanded the jury.

Defendant moved for reconsideration, arguing, among other points, that the State had violated his right against double jeopardy. The judge asked the

 

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parties to submit briefs on the double jeopardy issue, which was argued at a hearing before the trial court on February 21, 2020.

The February 21, 2020 Motion Hearing

At the hearing on his motion for reconsideration, defendant presented three arguments as to why the entire indictment should have been dismissed with prejudice: fundamental fairness; double jeopardy; and a violation of his rights under Brady v. Maryland, 373 U.S. 83 (1963).

Defendant argued the State's grand jury presentation emphasized two evidentiary cornerstones supporting all five counts of the indictment: "alcohol and . . . speed." Defendant contended that his alcohol consumption was essential to the State's case against him, arguing that "alcohol permeates the entire case up until the point . . . they're driving on the highway," and yet the State cannot provide blood sample evidence "used to indict" defendant.

As to double jeopardy, defendant argued that he had been placed in an "untenable position" after suddenly being made aware of the inaccurate BAC report. He contended that his options were either potentially waiving a double jeopardy defense by moving to dismiss the indictment, or maintaining the double jeopardy defense by risking a guilty verdict for charges predicated at least partly on false information. Further, defendant argued that the State could not, or at

 

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least should not be allowed to, "indict based upon speed alone" without any BAC or alcohol-related evidence.

Relatedly, defendant argued that principles of fundamental fairness should protect him "where the rights implicated do not squarely fall within the scope of an identifiable constitutional protection." Citing State v. Yoskowitz, 116 N.J. 697 (1989), defendant asserted that "pain and suffering and financial issues" should be considered before the trial court gives the State an avenue to re-try its case, particularly as it had been two years since the original indictment.

The State, in turn, argued to the trial judge that there can be no Brady violation with regard to evidence "it never had in its possession," namely defendant's actual blood samples lost at the JCMC. Instead, the State argues that the blood sample debacle is a matter of "spoilation" rather than a Brady violation.

Further, the State insisted that none of the three doctrines offered by defendant—Brady, fundamental fairness, or double jeopardy—could sustain the dismissal of an indictment with prejudice under our State's case law, which establishes a presumption against such dismissals. Citing State v. Farmer, 48 N.J. 145, 175 (1966), the prosecutor stressed the general public's interest in seeing serious crimes tried, as a consideration to be weighed against the

    

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defendant's due process rights. The State also stressed that defendant has not been in custody as he awaits the possibility of a revived indictment, pending this proceeding. The State further urged that "[t]here needs to be some bad faith or willful misconduct on the part of the . . . prosecutor for the Court to grant the dismissal with prejudice."

The State also reminded the court of its non-alcohol related evidence indicative of defendant's recklessness. Specifically, according to black box data, defendant had been driving up to 88 miles per hour in a 25 mile per hour zone within seconds of the collision; eyewitness testimony also corroborated defendant's speed and reckless driving; and lastly, a reconstruction of the collision suggested he had driven over the double solid line into Carvache's lane right before impact.

The Trial Judge's June 29, 2020 Written Opinion

Judge Patrick J. Arre declined to dismiss the entire indictment with prejudice, and preserved the first two counts. The judge issued a written opinion on June 29, 2020 that rejected the arguments posed by defendant.

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First, the judge concluded that defendant's motion for reconsideration was neither procedurally barred nor time barred under Rule 4:49-2, as argued by the State.4

Second, the judge rejected defendant's argument that the State's admission of an inaccurate blood sample violated his due process rights under Brady v. Maryland. The judge found that Brady does not apply because this is not an instance where the State withheld "evidence favorable to an accused." 373 U.S. at 87. Nevertheless, the judge relied upon a related Supreme Court due process case, Youngblood, 488 U.S. at 51, to justify the partial dismissal of defendant's indictment.

In Youngblood, a defendant was convicted of child molestation, sexual assault, and kidnapping, though a police criminologist was unable to obtain information about the victim's assailant from evidence collected with a "sexual assault kit." 488 U.S. at 52. The Arizona Court of Appeals reversed the conviction on the ground that the State had breached a constitutional duty to preserve evidence collected from the victim's body and clothing. Ibid. The

4 Because the trial judge was plainly correct in his application of Rule 4:49-2, we need not comment further about this alleged procedural bar to reconsideration. See D'Atria v. D'Atria, 242 N.J. Super. 392, 401-02 (Ch. Div. 1990).

      

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United States Supreme Court reversed because the record did not show bad faith on the part of the State. As the Court held:

Unless a criminal defendant can show bad faith on the part of the police, the state's failure to preserve potentially useful evidence—of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant— does not constitute a violation of the due process clause of the United States Constitution's Fourteenth Amendment.

[Ibid. (emphasis added).]
The trial judge observed that our State's Supreme Court, since State v. Marshall,

123 N.J. 1 (1991), has consistently applied the Youngblood "bad faith" standard for deeming unconstitutional a prosecutor's failure to preserve "potentially" exculpatory evidence.

Applying Youngblood's bad faith test, Judge Arre found that "the conduct of the State is shocking to a universal sense of justice and resulted in a denial of due process to the defendant." The judge noted that the "detectives here cannot be said to have followed their protocols or policies in good faith, and their failure to do so warrants a finding of bad faith." (Emphasis added).

In addition, the judge found "there was a significant likelihood that [the blood sample evidence] was exculpatory." The judge perceived that the "only evidence" the State had relevant to defendant's alcohol use, aside from the blood

       

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sample, were statements by witnesses who could mostly recall defendant drinking a few beers the evening of the accident, and the "speed and direction of the car at the time of impact." In the trial judge's estimation, depriving defendant a chance to examine or "meaningfully challenge" the strongest evidence on record—his reported BAC—amounted to a due process violation.

Turning to the question of a remedy for the due process violation, the judge concluded the appropriate recourse was to bar the State from proceeding under the three counts defendant was charged with pursuant to N.J.S.A. 2C:12- 1(c)(2) (assault by auto in the third degree). The judge dismissed those three counts with prejudice, as the defendant's intoxication and, therefore, his BAC, constituted a fundamental element of those charges.

By contrast, the judge preserved the State's ability to prosecute defendant under counts one and two. In this regard, the judge noted that "one can be reckless while driving and not be intoxicated." Implicitly, the judge's ruling signifies that the State's evidence of defendant's high speed and veering over the center line—even without incriminating BAC evidence—could satisfy its prima facie burden to establish the elements of first-degree aggravated manslaughter under count one and second-degree death by auto under count two.

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Finally, the judge rejected defendant's arguments that his further prosecution on counts one and two should be disallowed due to principles of double jeopardy and fundamental fairness. Weighing the "unfairness and prejudice suffered by defendant extending beyond his reasonable expectation in this case" against "the public interest in having the charges prosecuted[,]" the judge concluded that counts one and two of the indictment should not be dismissed with prejudice.

The trial judge emphasized that the court must consider the "public right to have the accused tried and punished if found guilty . . . especially . . . when looking at the seriousness of the crime charged." Despite what the judge termed the State's "inexcusable conduct" in its misattribution of the blood samples needed to support counts three, four, and five, defendant, according to the judge, had not been "subjected to the quantum of oppression, harassment or egregious deprivation necessary to warrant a dismissal" with prejudice of the remaining two counts.

Defendant now appeals. The State notably has not cross-appealed the dismissal with prejudice of counts three through five.

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At our invitation, we received helpful amicus briefs from the Attorney General and the Public Defender on these issues, and we heard oral arguments from the amici along with those presented by counsel of record.

II.
Through his initial and numerous supplemental briefs on appeal,

defendant essentially advances two core arguments: first, that the trial judge erred in rejecting his claim of a double jeopardy violation, and, second, that allowing the State to proceed on charges of aggravated manslaughter and death by auto is fundamentally unfair. We address these arguments in turn.

As a preface to our analysis, we are mindful that a determination of whether to dismiss an indictment generally is left to the sound discretion of the trial court and will be reversed only for an abuse of discretion. State v. Warmbrun, 277 N.J. Super. 51, 59 (App. Div. 1994). The court's decision to dismiss an indictment will constitute an abuse of discretion only "where 'the decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" State v. Triestman, 416 N.J. Super. 195, 202 (App. Div. 2010) (quoting United States v. Scurry, 193 N.J. 492, 504 (2008)) (alteration in original). Here, the judge's reasonable

   

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decision to dismiss with prejudice the last three counts of the indictment, but not the first two, was an appropriate exercise of discretion.

A.
We first consider defendant's claim that his constitutional right to be free

from double jeopardy was violated when the trial judge granted a mistrial and preserved the first two counts of the indictment.5 Defendant and the Public Defender contend that the trial judge, having found that the State mishandled the blood sample evidence in bad faith, should have offered defendant the option of proceeding with the same jury to a verdict if it was unwilling to dismiss the indictment in its entirety as he had requested. We disagree.

The Fifth Amendment of the United States Constitution instructs that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb[.]" U.S. Const. amend. V. Similarly, the New Jersey Constitution states that "No person shall, after acquittal, be tried for the same offense." N.J. Const. art. I, ¶ 11. Despite these differences in wording, our courts have treated these

5 We recognize that defendant's opening brief on appeal mentioned but did not contain a substantive discussion of double jeopardy. However, his subsequent briefs in this appeal, including his response to the amici, explicitly argued the issue. Because of the importance of the issue, we choose to reach and resolve it.

  

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federal and state constitutional Double Jeopardy clauses synonymously. State v. Miles, 229 N.J. 83, 92 (2017).

Jeopardy "attached" in this case when the trial jurors were sworn. State v. Allah, 170 N.J. 269, 279 (2002). After that moment, a defendant generally has a double jeopardy right to have that jury trial proceed to a verdict. Id. at 280 (citing State v. Lynch, 79 N.J. 327, 340-41 (1979)). That does not end the analysis, however. Not all mistrials bar a new trial; only an improper termination of a trial by the court precludes a defendant's re-prosecution. Ibid.

One of the recognized exceptions to the double jeopardy bar to a re-trial is whether the court declared a mistrial in circumstances where there was a "manifest necessity." United States v. Dinitz, 424 U.S. 600, 606-07 (1976); State v. Kelly, 201 N.J. 471, 485 (2010); Allah, 170 N.J. at 280. "Where the court finds a sufficient legal reason and manifest necessity to terminate a trial, the defendant's right to have his initial trial completed is subordinated to the public's interest in fair trials and reliable judgments." State v. Loyal, 164 N.J. 418, 435 (2000); see also Allah, 170 N.J. at 280. The presence of such manifest necessity is highly fact-specific and contextual, and there are "no rigid rules" about what rises to that level. State v. Smith, 465 N.J. Super. 515, 536-37 (App.

         

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Div. 2020) (finding, albeit in a different procedural context arising out of the COVID-19 pandemic, "manifest necessity" to terminate an ongoing jury trial).

We are persuaded the judge here reasonably terminated the trial and discharged the jury once the sudden bombshell about the mistaken blood sample was revealed. Although we have not been provided with the trial transcripts, we presume the prosecution in its opening statement presented the trial jurors with the same theme it had presented to the grand jurors, i.e. that defendant was heavily intoxicated at the time of the collision. It is also likely that some of the testifying witnesses before the hospital nurse took the stand provided testimony in support of that theme. The parties have not shown otherwise.6

Once the testifying nurse's records revealed that the blood samples tested at the State's lab were not attributable to defendant, there was no realistic way for the jurors to ignore that enormous mistake. A limiting instruction would not have sufficed to cure the massive prejudice to the State that defense counsel would surely exploit. See, e.g., State v. Manning, 82 N.J. 417, 421-22 (1980) (finding that the prejudicial effect of testimony that should not have been admitted was "devastating" and constituted reversible error despite prompt and

6 As we noted above, in advocating for dismissal with prejudice after the blood sample snafu had come to light, defense counsel argued to the court that the State’s case thus far had been centered on "alcohol" and "speed."

  

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emphatic limiting instructions from the trial court); State v. Herbert, 457 N.J. Super. 490, 504-08 (App. Div. 2019) (recognizing that "jury compliance with curative and limiting instructions" cannot always be presumed, and that such an instruction sometimes may be ineffective when it concerns evidence that "bears directly on the ultimate issue"). The trial simply could not be salvaged.

Moreover, defendant did not voice to the trial judge any objection to a mistrial after partially losing his motion for dismissal with prejudice of all charges. Although his attorney did not affirmatively assent to the mistrial, the lack of an objection deprived the judge of an opportunity to consider the matter more deeply. In any event, there simply were no realistic options other than to end the trial and plan for a fresh start.

Defendant urges that he was entitled to a bar on re-prosecution because the judge found that the State's misattribution of the blood samples, while not deliberate, was done in bad faith. But not all findings of the government's bad faith inexorably preclude re-prosecution. The trial court must examine the comparative interests and equities on a case-by-case basis, just as it does in the analogous context of a Brady violation. See, e.g., State v. Brown, 236 N.J. 497, 527-28 (2019). The question is whether the State's conduct is "so outrageous"

   

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as to "absolutely bar" it from involving judicial processes to obtain a conviction. Id. at 528 (quoting United States v. Russell, 411 U.S. 423, 431-32 (1973)).

In Brown, the State belatedly turned over nineteen reports to the defense one week into a jury trial, but there was no evidence of "willful misconduct." Ibid. Accordingly, the Supreme Court discerned no constitutional barrier to allowing the State to proceed with the case. Ibid.

Here, although we surely do not condone the misattribution of the blood samples and the loss of defendant's own vials, we likewise are satisfied that the mistakes were not sufficiently outrageous to bar the State completely from going forward with portions of the charges that are not dependent on defendant's BAC level or proof of intoxication. The Double Jeopardy clauses do not mandate total dismissal here.

B.
In a related argument, defendant contends that his re-prosecution on

counts one and two would contravene principles of fundamental fairness. The trial judge soundly rejected that argument.

The New Jersey Supreme Court has characterized the doctrine of fundamental fairness as "'an integral part of due process'" which "'protect[s] citizens . . . against unjust and arbitrary governmental action[.]'" State v. Shaw,

  

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241 N.J. 223, 239-40 (2020) (quoting State v. Saavedra, 222 N.J. 39, 67 (2015) and Doe v. Portiz, 142 N.J. 1, 108 (1995)). The doctrine is "applied 'sparingly,' only when 'the interests involved are especially compelling.'" Ibid. (quoting Doe, 142 N.J. at 108).

Defendant rightfully points out the anxiety, uncertainty, embarrassment, and additional expenses he will sustain due to the further delay of this case. See State v. Abbati, 99 N.J. 418, 430 (1985) (recognizing these considerations as "a proper subject for the application of traditional notions of fundamental fairness and substantial justice"). The trial judge duly considered those concerns, but carefully weighed them against the public's countervailing interest in seeing to it that allegedly criminal behavior that caused a loss of life, if proven beyond a reasonable doubt, does not go unpunished. Even without BAC results or circumstantial proof of defendant's inebriation, as the judge recognized, there is ample non-alcohol-related evidence here of his criminally reckless driving to justify his re-prosecution on counts one and two. The judge reasonably balanced the competing interests and reached a just determination to dismiss some counts with prejudice but preserve others. His ruling was not fundamentally unfair.

Also on the subject of fairness, we note the acknowledgments of both the County Prosecutor and the amicus Attorney General that the case should not

  

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proceed under the existing indictment and that the matter should be presented to a different grand jury. That concession is consistent with well settled principles warranting a presentation to a new grand jury where the original grand jury was tainted by improper evidence or other infirmities. See, e.g., State v. Jeannotte- Rodriguez, 469 N.J. Super. 69 (App. Div. 2021); State v. Lisa, 391 N.J. Super. 556 (App. Div. 2007), aff'd, 194 N.J. 409 (2008). Here, the original grand jury was repeatedly exposed to evidence of defendant's alleged intoxication and his misreported, whopping BAC level of 0.376%. The taint is manifestly clear.

As a final point of clarification, we reject the State's request to be permitted on a re-prosecution to present evidence of defendant's "impairment" in lieu of proving his "intoxication," including evidence of him drinking at bars on the night of the incident. This should not be allowed.

For one thing, our case law has noted, in the context of applying the Interstate Driver License Compact, N.J.S.A. 39:5D-1 to -14, the close overlap between the concepts of motorist impairment and intoxication. See State v. Zeikel, 423 N.J. Super. 34, 45-46 (App. Div. 2011). In addition, the trial judge's reasons for prohibiting the State from prosecuting defendant on counts three through five due to the misattribution of his blood sample logically preclude the State from trying to show his inebriation through other means. That would be

     

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particularly unfair to defendant, whose actual—and irretrievable—blood sample might have shown, as the trial judge recognized, he was below the legal limit.

To be clear: before a new grand jury and at any subsequent trial, the State may not offer proof of any kind to show that defendant was under the influence of alcohol at the time of the collision. The trial court's decision is hereby modified to include this evidentiary prohibition.

We have considered all of the other arguments raised on appeal and have determined they lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).

Affirmed, as modified.

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39 :4-50.19 Violation of law; penalties. Failure to impose interlock

 39 :4-50.19  Violation of law; penalties. Failure to impose interlock

No jail, no fine if not driving

   4. a. A person who fails to install an interlock device ordered by the court in a motor vehicle owned, leased or regularly operated by him shall have his driver's license suspended for one year, in addition to any other suspension or revocation imposed under R.S.39:4-50, unless the court determines a valid reason exists for the failure to comply. 

 

      A person in whose vehicle an interlock device is installed pursuant to a court order who drives that vehicle after it has been started by any means other than his own blowing into the device or who drives a vehicle that is not equipped with such a device shall have his driver's license suspended for one year, in addition to any other penalty applicable by law.

   b.   A person is a disorderly person who:

   (1)   blows into an interlock device or otherwise starts a motor vehicle equipped with such a device for the purpose of providing an operable motor vehicle to a person who has been ordered by the court to install the device in the vehicle;

   (2)   tampers or in any way circumvents the operation of an interlock device; or

   (3)   knowingly rents, leases or lends a motor vehicle not equipped with an interlock device to a person who has been ordered by the court to install an interlock device in a vehicle he owns, leases or regularly operates.

   c.   The provisions of subsection b. of this section shall not apply if a motor vehicle required to be equipped with an ignition interlock device is started by a person for the purpose of safety or mechanical repair of the device or the vehicle, provided the person subject to the court order does not operate the vehicle.

   L.1999, c.417, s.4; amended 2009, c.201, s.3.

 

The NJ MVC has released an official list of Ignition Interlock manufacturers

 The NJ MVC has released an official list of Ignition Interlock manufacturers

The list can be found at this link:
https://www.state.nj.us/mvc/license/interlock-manufacturers.htm
 

       Ignition interlock manufacturers have installation locations throughout New Jersey. When selecting an ignition interlock provider, consider the installation and monitoring fees and installation center site convenience.

 

https://www.state.nj.us/mvc/pdf/license/Licensed_Ignition_Interlock_Installers.pdf

View the list of licensed installers.  

 

(Only an installer licensed by the New Jersey Motor Vehicle Commission may be used.  Before scheduling your installation, confirm that the installer you select from the manufacturer's list is properly licensed.)

 

2C:33-15 Possession, consumption of alcoholic beverages by persons under legal age; penalty

 2C:33-15 Possession, consumption of alcoholic beverages by persons under legal age; penalty

Jail 2C: 43- 8       potential jail  6 month maximum 

                         probation 1-2 year max                             

                         community service  180 days maximum  

                               

Disorderly- fines:    $500- $1,000 Fine  maximum  under 2C: 43- 3

       plus mandatory costs, VCCO and other penalties      

 

 

Revised  2C :33-15 Possession, consumption by persons under legal age; penalty.

   1. a. (1) Any person under the legal age to purchase alcoholic beverages, or under the legal age to purchase cannabis items, who knowingly possesses without legal authority or who knowingly consumes any alcoholic beverage, cannabis item, marijuana, or hashish in any school, public conveyance, public place, or place of public assembly, or motor vehicle shall be subject to the following consequences:

   (a)   for a first violation, a written warning issued by a law enforcement officer to the underage person. The written warning shall include the person's name, address, and date of birth, and a copy of the warning containing this information, plus a sworn statement that includes a description of the relevant facts and circumstances that support the officer's determination that the person committed the violation, shall be temporarily maintained in accordance with this section only for the purposes of determining a second or subsequent violation subject to the consequences set forth in subparagraph (b) or (c) of this paragraph.  If the violation of this section is by a person under 18 years of age, a written notification concerning the violation shall be provided to the parent, guardian or other person having legal custody of the underage person in accordance with section 3 of P.L.1991, c.169 (C.33:1-81.1a).

   (b)   for a second violation, a written warning issued by a law enforcement officer to the underage person indicating that a second violation has occurred, which includes the person's name, address, and date of birth. If the violation is by a person 18 years of age or older, the officer shall provide the person with informational materials about how to access community services provided by public or private agencies and organizations that shall assist the person with opportunities to access further social services, including but not limited to counseling, tutoring programs, mentoring services, and faith-based or other community initiatives. If the violation is by a person under 18 years of age, a written notification concerning the second violation shall be provided to the parent, guardian or other person having legal custody of the underage person in accordance with section 3 of P.L.1991, c.169 (C.33:1-81.1a). The written notification shall include the same or similar informational materials about how to access community services provided by public or private agencies and organizations as those provided directly by a law enforcement officer to a person 18 years of age or older who commits a second violation of this paragraph. A copy of the second written warning to the underage person, and, if applicable, the written notification to the parent, guardian or other person having legal custody of the underage person concerning the second warning, plus a sworn statement that includes a description of the relevant facts and circumstances that support the officer's determination that the person committed the second violation, shall be temporarily maintained in accordance with this section only for the purposes of determining a subsequent violation subject to the consequences set forth in subparagraph (c) of this paragraph.

   (c)   for a third or subsequent violation, a write-up issued by a law enforcement officer to the underage person indicating that a third or subsequent violation has occurred, which includes the person's name, address, and date of birth. If the violation is by a person 18 years of age or older, the officer shall include with the write-up a referral for accessing community services provided by a public or private agency or organization, and provide notice to that agency or organization of the referral which may also be used to initiate contact with the person, and the agency or organization shall offer assistance to the person with opportunities to access further social services, including but not limited to counseling, tutoring programs, mentoring services, and faith-based or other community initiatives. If the violation is by a person under 18 years of age, a written notification concerning the third or subsequent violation shall be provided to the parent, guardian or other person having legal custody of the underage person in accordance with section 3 of P.L.1991, c.169 (C.33:1-81.1a). The written notification shall include a referral for the person and the parent, guardian or other person having legal custody of the underage person for accessing community services provided by a public or private agency or organization, and provide notice to that agency or organization of the referral which may also then be used to initiate contact with both persons, and the agency or organization shall offer assistance to both with opportunities to access further social services, including counseling, tutoring programs, mentoring services, and faith-based or other community initiatives. A copy of a write-up for a third or subsequent violation, the written notification to the parent, guardian or other person having legal custody of the underage person, if applicable, and accompanying referrals, plus a sworn statement that includes a description of the relevant facts and circumstances that support the officer's determination that the person committed the third or subsequent violation, shall be temporarily maintained in accordance with this section only to the extent necessary to track referrals to agencies and organizations, as well as for the purposes of determining a subsequent violation subject to the consequences set forth in this subparagraph. 

   The failure of a person under the legal age to purchase alcoholic beverages or cannabis items, or the failure of a parent, guardian or other person having legal custody of the underage person, to accept assistance from an agency or organization to which a law enforcement referral was made, or to access any community services provided by that agency or organization shall not result in any summons, initiation of a complaint, or other legal action to be adjudicated and enforced in any court.

   (2) (a) A person under the legal age to purchase alcoholic beverages or cannabis items is not capable of giving lawful consent to a search to determine a violation of this section, and a law enforcement officer shall not request that a person consent to a search for that purpose.

   (b)   The odor of an alcoholic beverage, marijuana, hashish, cannabis, or cannabis item, or burnt marijuana, hashish, cannabis, or cannabis item, shall not constitute reasonable articulable suspicion to initiate an investigatory stop of a person, nor shall it constitute probable cause to initiate a search of a person or that person's personal property to determine a violation of paragraph (1) of this subsection. Additionally, the unconcealed possession of an alcoholic beverage, marijuana, hashish, or cannabis item in violation of paragraph (1) of this subsection, observed in plain sight by a law enforcement officer, shall not constitute probable cause to initiate a search of a person or that person's personal property to determine any further violation of that paragraph or any other violation of law. 

   (3)   A person under the legal age to purchase alcoholic beverages or cannabis items who violates paragraph (1) of this subsection for possessing or consuming an alcoholic beverage, marijuana, hashish, or a cannabis item shall not be subject to arrest, shall not be transported to a police station, police headquarters, or other place of law enforcement operations, and shall not otherwise be subject to detention or be taken into custody by a law enforcement officer at or near the location where the violation occurred, except to the extent that detention or custody at or near the location is required to issue a written warning or write-up, collect the information necessary to provide notice of a violation to a parent, guardian or other person having legal custody of the underage person in accordance with section 3 of P.L.1991, c.169 (C.33:1-81a), or make referrals for accessing community services provided by a public or private agency or organization due to a third or subsequent violation, unless the person is being arrested, detained, or otherwise taken into custody for also committing another violation of law for which that action is legally permitted or required.

   (4)   Consistent with the provisions of subsection c. of section 1 of P.L.2020, c.129 (C.40A:14-118.5), the video and audio recording functions of a law enforcement officer's body worn camera, as defined in that section, shall be activated whenever the law enforcement officer is responding to a call for service related to a violation or suspected violation of paragraph (1) of this subsection for possessing or consuming an alcoholic beverage, marijuana, hashish, or a cannabis item, or at the initiation of any other law enforcement or investigative encounter between an officer and a person related to a violation or suspected violation of that paragraph, and shall remain activated until the encounter has fully concluded and the officer leaves the scene of the encounter; provided, however, that the video and audio recording functions of a body worn camera shall not be deactivated pursuant to subparagraph (a) of paragraph (2) of subsection c. of P.L.2020, c.129 (C.40A:14-118.5), based on a request to deactivate the camera by a person who is the subject of a responsive call for service or law enforcement or investigative encounter related to a violation or suspected violation of paragraph (1) of this subsection.

   (5)   As part of the process for the issuance of a written warning or write-up to a person for a violation of paragraph (1) of this subsection, the law enforcement officer shall take possession of any alcoholic beverage, marijuana, hashish, or cannabis item from the person, and any drug or cannabis paraphernalia for use with any marijuana, hashish, or cannabis item. The existence and description of the alcoholic beverage, marijuana, hashish, or cannabis item, and any drug or cannabis paraphernalia shall be included in the sworn statement that includes a description of the relevant facts and circumstances that support the officer's determination that the person committed a violation, and which record is temporarily maintained in accordance with this section to determine subsequent possession or consumption violations, and track referrals for accessing community services provided by a public or private agency or organization due to a third or subsequent violation. Any alcoholic beverage, marijuana, hashish, cannabis item, or drug or cannabis paraphernalia obtained by the law enforcement officer shall either be destroyed or secured for use in law enforcement training or educational programs in accordance with applicable law and directives issued by the Attorney General.

   (6)   With respect to any violation of paragraph (1) of this subsection concerning the possession or consumption of an alcoholic beverage, marijuana, hashish, or any cannabis item:

   (a)   a person under the legal age to purchase alcoholic beverages or cannabis items shall not be photographed or fingerprinted, notwithstanding any provisions of section 2 of P.L.1982, c.79 (C.2A:4A-61) to the contrary;

   (b) (i) any copy of any written warning or write-up issued to a person under the legal age to purchase alcoholic beverages or cannabis items, written notification provided to the person's parent, guardian or other person having legal custody in accordance with section 3 of P.L.1991, c.169 (C.33:1-81.1a), sworn statement describing the relevant facts and circumstances that support an officer's determination that a person committed a violation, or referrals for accessing community services provided by a public or private agency or organization pertaining to a third or subsequent violation shall be segregated and maintained in a separate physical location or electronic repository or database from any other records maintained by a law enforcement agency, and reported to the Attorney General in a manner so that they are similarly segregated and maintained in a separate physical location or electronic repository or database from other law enforcement records accessible to the Attorney General and State and local law enforcement agencies, and shall not be transferred to or copied and placed in any other physical location or electronic repository or database containing any other law enforcement records. These records shall only be used to the extent necessary to determine a subsequent violation of paragraph (1) of this subsection or to track referrals to agencies and organizations, and shall not be revealed, reviewed, or considered in any manner with respect to any current or subsequent juvenile delinquency matter, including but not limited to, a charge, filing, eligibility or decision for diversion or discharge, or sentencing, other disposition, or related decision affecting the juvenile, or with respect to any current or subsequent prosecution for committing an offense or other violation of law, including but not limited to, a charge, filing, eligibility or decision for diversion or discharge, or sentencing, other disposition, or related decision affecting an adult under 21 years of age. Also, these records shall be deemed confidential and shall not be subject to public inspection or copying pursuant to the provisions of P.L.1963, c.73 (C.47:1A-1 et seq.), and their existence shall not be acknowledged based upon any inquiry in the same manner as if the records were expunged records pursuant to the provisions of subsection a. of N.J.S.2C:52-15.

   The Attorney General may use the records described herein to generate the number of occurrences and other statistics concerning first, second, third and subsequent violations of paragraph (1) of this subsection, the municipal, county or other geographic areas within which first, second, third and subsequent violations occur, and the law enforcement agencies involved in first, second, third and subsequent violations, which are to be compiled and made available by the Attorney General in accordance with section 4 of P.L.2021, c.25 (C.2C:33-15.1). The identity of any person named in a record shall not be revealed or included in the information to be compiled and made available in accordance with that section.

   The records of violations shall only be maintained temporarily and shall be destroyed or permanently deleted as set forth in subparagraph (c) of this paragraph.

   (ii)   any records pertaining to a person's acceptance of assistance from an agency or organization to which a law enforcement referral was made shall not be revealed, reviewed, or considered in any manner with respect to any current or subsequent juvenile delinquency matter, including but not limited to, a charge, filing, eligibility or decision for diversion or discharge, or sentencing, other disposition, or related decision affecting the juvenile, or with respect to any current or subsequent prosecution for committing an offense or other violation of law, including but not limited to, a charge, filing, eligibility or decision for diversion or discharge, or sentencing, other disposition, or related decision affecting an adult under 21 years of age. Also, these records shall be deemed confidential and shall not be subject to public inspection or copying pursuant to the provisions of P.L.1963, c.73 (C.47:1A-1 et seq.), and their existence shall not be acknowledged based upon any inquiry in the same manner as if the records were expunged records pursuant to the provisions of subsection a. of N.J.S.2C:52-15.

   (c)   All of the records maintained by a law enforcement agency and reported to the Attorney General as described in subsubparagraph (i) of subparagraph (b) of this paragraph shall be destroyed or permanently deleted by the law enforcement agency and Attorney General on the second anniversary following the creation of the record concerning a violation, or not later than the last day of the month in which that second anniversary date falls, or alternatively not later than the 21st birthday of a person who is the subject of a record, or not later than the last day of the month in which that birthday falls, whichever date occurs sooner, except that a record shall be maintained upon request by the person named in the record or representative thereof, the law enforcement officer who made the record, or the law enforcement agency currently maintaining the record if it involves a lawsuit, disciplinary complaint, or criminal prosecution arising from the violation described in the record, based on an assertion that the record has evidentiary or exculpatory value. Upon final disposition of the matter for which the extended record retention was requested, the record shall be destroyed or permanently deleted.

   (d)   A law enforcement officer shall be guilty of the crime of official deprivation of civil rights as set forth in section 3 of P.L.2021, c.25 (C.2C:30-6.1) for violating the provisions of paragraph (1) of this subsection that address law enforcement actions involving persons who are under the legal age to purchase alcoholic beverages or cannabis items.   

   b.   (Deleted by amendment, P.L.2021, c.25)   

   c.   (Deleted by amendment, P.L.2021, c.25)

   d.   Nothing in this act shall apply to possession of alcoholic beverages by any such person while actually engaged in the performance of employment pursuant to an employment permit issued by the Director of the Division of Alcoholic Beverage Control, or for a bona fide hotel or restaurant, in accordance with the provisions of R.S.33:1-26, or while actively engaged in the preparation of food while enrolled in a culinary arts or hotel management program at a county vocational school or post-secondary educational institution; and nothing in this section shall apply to possession of cannabis items by any such person while actually engaged in the performance of employment by a cannabis establishment, distributor, or delivery service as permitted pursuant to the "New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act," P.L.2021, c.16 (C.24:6I-31 et al.).

   e.   Except as otherwise provided in this section, the provisions of section 3 of P.L.1991, c.169 (C.33:1-81.1a) shall apply to a parent, guardian or other person with legal custody of a person under 18 years of age who is found to be in violation of this section. 

   f.   An underage person and one or two other persons shall be immune from prosecution under this section if:

   (1)   one of the underage persons called 9-1-1 and reported that another underage person was in need of medical assistance due to alcohol consumption, or the consumption of marijuana, hashish, or a cannabis item; 

   (2)   the underage person who called 9-1-1 and, if applicable, one or two other persons acting in concert with the underage person who called 9-1-1 provided each of their names to the 9-1-1 operator; 

   (3)   the underage person was the first person to make the 9-1-1 report; and

   (4)   the underage person and, if applicable, one or two other persons acting in concert with the underage person who made the 9-1-1 call remained on the scene with the person under the legal age in need of medical assistance until assistance arrived and cooperated with medical assistance and law enforcement personnel on the scene.

   The underage person who received medical assistance also shall be immune from prosecution under this section.

   g.   For purposes of this section, an alcoholic beverage includes powdered alcohol as defined by R.S.33:1-1, a cannabis item includes any item available for lawful consumption pursuant to the "New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act," P.L.2021, c.16 (C.24:6I-31 et al.), and the terms "marijuana" and "hashish" have the same meaning as set forth in N.J.S.2C:35-2, and the terms "drug paraphernalia" and "cannabis paraphernalia" have the same meaning as set forth in N.J.S.2C:36-1 and section 3 of P.L.2021, c.16 (C.24:6I-33), respectively.

   L.1979, c.264, s.1; amended 1991, c.169, s.2; 1997, c.161; 2009, c.133, s.1; 2015, c.137, s.3; 2021, c.16, s.73; 2021, c.25, s.2; 2021, c.38.

If charged with any criminal offense, immediately schedule an appointment with a criminal trial attorney. Don’t rely on a real estate attorney, public defender or a family member who took a law class in school. When your life and career is on the line, hire the best attorney available.

KENNETH  VERCAMMEN & ASSOCIATES, PC

ATTORNEY AT LAW

2053 Woodbridge Ave.

Edison, NJ 08817

(Phone) 732-572-0500

 

Drug charge defense

   Drug charge defense 

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 certain drugs

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 must 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.

       In addition, probation for up to two years, drug counseling, periodic urine testing, alcohol and/or psychiatric counseling and community service may be imposed.

You should hire a Certified Municipal Court Law Attorney such as Kenneth Vercammen to Represent you if you are serious about contesting serious charges. Very few attorneys in New Jersey have been able to pass the rigid test to be recognized by the Supreme Court as a Certified Municipal Court Law Attorney. Ask your attorney if they have actually had trials in the past year or just plead people guilty.

      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 defendants 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 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. 

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 Defendants 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 defendants 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, defendants 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 prosecutors 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.

2C:35-10 Marijuana 2C:35-10 pot charges CDS

Kenneth Vercammen’s Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey.

The defense of a person charged with possession of drugs or drug paraphernalia is not impossible. Attorneys should not merely suggest that their client plead guilty to save a few dollars. 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 involvement with controlled dangerous substances (CDS).

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 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 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 may be imposed;    (3) (a) Prior to the effective date of P.L.2021, c.19 (C.2C:35-23.1 et al.), 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 may be imposed; 

   (b)   On and after to the effective date of P.L.2021, c.19 (C.2C:35-23.1 et al.), possession of more than six ounces of marijuana, including any adulterants or dilutants, or more than 17 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 may be imposed;

   (i)   The odor of marijuana or hashish, or burnt marijuana or hashish, shall not constitute reasonable articulable suspicion to initiate a search of a person to determine a violation of subparagraph (b) of paragraph (3) of this subsection.  A person who violates this paragraph shall not be subject to arrest, detention, or otherwise be taken into custody, unless the person is being arrested, detained, or otherwise taken into custody for also committing another violation of law for which that action is legally permitted or required;

   (ii)   A person shall not be deprived of any legal or civil right, privilege, benefit, or opportunity provided pursuant to any law solely by reason of committing a violation of subparagraph (b) of paragraph (3) of this subsection, nor shall committing one or more violations modify any legal or civil right, privilege, benefit, or opportunity provided pursuant to any law, including, but not limited to, the granting, renewal, forfeiture, or denial of a license, permit, or certification, qualification for and the receipt, alteration, continuation, or denial of any form of financial assistance, housing assistance, or other social services, rights of or custody by a biological parent, or adoptive or foster parent, or other legal guardian of a child or newborn infant, or pregnant woman, in any action or proceeding by the Division of Child Protection and Permanency in the Department of Children and Families, or qualification, approval, or disapproval to serve as a foster parent or other legal guardian;

   (iii) All local and county law enforcement authorities shall, following the submission process used for the uniform crime reporting system established by P.L.1966, c.37 (C.52:17B-5.1 et seq.), submit a quarterly report to the Uniform Crime Reporting Unit, within the Division of State Police in the Department of Law and Public Safety, or to another designated recipient determined by the Attorney General, containing the number of violations of subparagraph (b) of paragraph (3) of this subsection committed within their respective jurisdictions, plus the race, ethnicity, gender, and age of each person committing a violation, and the disposition of each person's violation.  These violations and associated information, along with a quarterly summary of violations investigated, and associated information collected, by the Division of State Police for the same period shall be summarized by county and municipality in an annual report, and both quarterly summaries and annual reports shall be made available at no cost to the public on the Division of State Police's Internet website; or

   (4) (a) Prior to the effective date of P.L.2021, c.19 (C.2C:35-23.1 et al.), possession of 50 grams or less of marijuana, including any adulterants or dilutants, or five grams or less of hashish is a disorderly person;

   (b)   On and after the effective date of P.L.2021, c.19 (C.2C:35-23.1 et al.), possession of six ounces or less of marijuana, including any adulterants or dilutants, or 17 grams or less of hashish is not subject to any punishment, as this possession is not a crime, offense, act of delinquency, or civil violation of law; or

 

   (5)   Possession of one ounce or less of psilocybin is a disorderly persons offense.

   Any person who commits any offense set forth in paragraphs (1) through (3) of this subsection 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. (1) Any person who uses or who is under the influence of any controlled dangerous substance, or its analog, not including marijuana or hashish, 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, prohibited 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 prohibited 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 prohibited controlled dangerous substance or controlled substance analog.

   (2)   Notwithstanding that using or being under the influence of marijuana or hashish is not a punishable crime, offense, act of delinquency, or civil violation pursuant to this subsection, the smoking, vaping, or aerosolizing of marijuana or hashish may be prohibited or otherwise regulated on or in any property by the person or entity that owns or controls that property, including multifamily housing that is a multiple dwelling as defined in section 3 of P.L.1967, c.76 (C.55:13A-3), the structure or specific units of the structure of a cooperative as defined in section 3 of P.L.1987, c.381 (C.46:8D-3),the units of a condominium, as those terms are defined by section 3 of P.L.1969, c.257 (C.46:8B-3), or a site in a mobile home park as defined in section 3 of P.L.1983, c.386 (C.40:55D-102), which site is leased to the owner of a manufactured home, as defined in that section, that is installed thereon.

   c.   Any person who knowingly obtains or possesses a controlled dangerous substance or controlled substance analog in violation of paragraph (1) or (2) 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; 2021, c.9; 2021, c.16, s.56; 2021, c.19, s.2.

     More info at http://www.njlaws.com/marijuana.html

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.

     In addition, probation for several 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  Prosecutor and the Court k. 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.

KENNETH VERCAMMEN & ASSOCIATES, PC

ATTORNEY AT LAW

2053 Woodbridge Ave.

Edison, NJ 08817

(Phone) 732-572-0500

Copyright 2016 Vercammen Law

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 defendants 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 1 year 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 Defendants 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.

    Pre-Trial Motions we usually file:

1. 1. 1) Suppress Evidence
2. 2. 2) Miranda/Privilege
3. 3. 3) Exclude Lab Tests
4. 4. 4) Discovery
5. 5. 5) Reciprocal Discovery
6. 6. 6) Experts
7. 7. 7) Reciprocal discovery
8. 8. 8) Speedy Trial
9. 9. 9) Notice of Objection to Lab Reports

PRE‑TRIAL MOTIONS

     At a time to be set by the Court, Defendant will move for Orders pursuant to R. 3:10‑5, 3:13‑1, and 7:7-7, as follows and requests oral argument pursuant to R. 1:6‑2(d) to preserve all of defendant's rights and defenses:

1) Suppress Evidence. Defendant will move to suppress, evidence obtained by the State during its investigation of case, pursuant to R. 3:5‑7 and 7:5-2, because evidence‑‑ie defendant's person, breath, blood, and/or other things‑‑was seized unlawfully, without a warrant  and contrary to U.S. Const. Amends. IV and XIV and N.J. Const. Art.1, para.7. Defendant believes the State will use this evidence in proceedings before this Court on the above captioned charges.

2) Miranda/Privilege. Defendant will move to exclude statements by, and evidence obtained from, Defendant during the State's investigation of this case because the statements and evidence (a) create substantial danger of undue prejudice to Defendant contrary to Evid.R. 403 (previously Evid.R. 4), (b) are privileged under Evid.R. 503 (previously Evid.R. 25), and (c) were obtained contrary to U.S. Const. Amends. V, VI, IX, and XIV, NJ Constitution 1, paras.1, 10, and 2], and requirements stated in Miranda v. Arizona, 384 US. 486, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and its progeny.

3) Exclude Drug Tests. If police used a drug testing instrument in this case, Defendant will move to exclude evidence(‑ of drug test results because (a) the Attorney General failed to exercise administrative authority and prescribe methods and procedures for periodic inspection of drug testing instruments as required by statute, and (b) without such properly prescribed methods and procedures, the State cannot lay the foundation needed for admission of drug test results into evidence at trial. 

4) Discovery.  7.1 Defendant requests that the State provide paper copy of any relevant discovery as required by Rule 3:13-3, Rule 7:7-7(b) . Defendant further requests that the Court enter a DISCOVERY ORDER, provided the prosecutor neither sends notice of specific objections in writing pursuant to R. 3:1‑4 nor moves timely for a protective order pursuant to R. 3:13‑3(d). . If the State fails to provide discovery as requested herein, Defendant may move either before or during trial pursuant to R. 3:13‑3(f), R. 3:17‑4, and Evid.R. 807 (previously Evid.R 64), as applicable, for an Order (a) permitting discovery or inspection of undisclosed materials, (b) granting a continuance, (c) prohibiting introduction in evidence of undisclosed material, (d) monetary sanctions, (e) dismissal of the charges, and (f)such other order as the Court deems appropriate.

5) Reciprocal Discovery. 8.1. Defendant may call certain fact witnesses to testify, inter alia, that: they have known Defendant, b) they saw Defendant before or after police saw Defendant, c) Defendant was not under the influence of drugs, d)and e) there was no articulable suspicion that Defendant had violated the law. The witnesses will be named following/ after the state provides complete discovery.

6) Defendant may call the following experts to testify- Expert  Dr. Richard Saperstein,  and/or Others to be provided if and when retained following receipt of the state's expert.

7) Defendant may use demonstrative and documentary evidence, which the State may inspect and copy or photograph after paying reasonable expenses therefor: a) photographs c) video e) maps g) pharmacy records h) films d) diagrams f) medical/hospital h) weather records

8) Speedy Trial. Defendant demands a speedy trial pursuant to U.S. Const. Amend. VI and N.J. Const. Art.1, para.10.

9) Notice of Objection. If the State gives notice of intent to proffer a certificate executed by a laboratory employee pursuant to N.J.S. 2C:35‑19c, Defendant hereby objects to it on the grounds that Defendant intends to contest at trial the composition, quality, and quantity of substances submitted to the laboratory for analysis.

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.   Copyright 2016 Vercammen Law

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. You may be required to do Community Service.

11. 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.

12. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction.

13. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation.

14. You lose the presumption against incarceration in future cases. 2C:44-1

15. 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