Court Rule 3:5. SEARCH WARRANTS
3:5-1. Authority to Issue
A search warrant may be issued by a judge of a court having jurisdiction in the municipality where the property sought is located.
Note: Source-R.R. 3:2A-1.
3:5-2. Grounds for Issuance
A search warrant may be issued to search for and seize any property, including documents, books, papers and any other tangible objects, obtained in violation of the penal laws of this State or any other state; or possessed, controlled, designed or intended for use or which has been used in connection with any such violation; or constituting evidence of or tending to show any such violation.
Note: Source-R.R. 3:2A-2, 3:2A-7.
3:5-3. Issuance and Contents
(a) An applicant for a search warrant shall appear personally before the judge, who must take the applicant's affidavit or testimony before issuing the warrant. The judge may also examine, under oath, any witness the applicant produces, and may require that any person upon whose information the applicant relies appear personally and be examined under oath concerning such information. If the judge is satisfied that grounds for granting the application exist or that there is probable cause to believe they exist, the judge shall date and issue the warrant identifying the property to be seized, naming or describing the person or place to be searched and specifying the hours when it may be executed. The warrant shall be directed to any law enforcement officer, without naming an officer, and it shall state the basis for its issuance and the names of the persons whose affidavits or testimony have been taken in support thereof. The warrant shall direct that it be returned to the judge who issued it.
(b) A Superior Court judge may issue a search warrant upon sworn oral testimony of an applicant who is not physically present. Such sworn oral testimony may be communicated to the judge by telephone, radio or other means of electronic communication. The judge shall contemporaneously record such sworn oral testimony by means of a tape-recording device or stenographic machine if such are available; otherwise, adequate longhand notes summarizing what is said shall be made by the judge. Subsequent to taking the oath, the applicant must identify himself or herself, specify the purpose of the request and disclose the basis of his or her information. This sworn testimony shall be deemed to be an affidavit for the purposes of issuance of a search warrant. A warrant may issue if the judge is satisfied that exigent circumstances exist sufficient to excuse the failure to obtain a written warrant, and that sufficient grounds for granting the application have been shown. Upon approval, the judge shall memorialize the specific terms of the authorization to search and shall direct the applicant to enter this authorization verbatim on a form, or other appropriate paper, designated the duplicate original search warrant. This warrant shall be deemed a search warrant for the purpose of R. 3:5. The judge shall direct the applicant to print the judge's name on the warrant. The judge shall also contemporaneously record factual determinations as to exigent circumstances. If a recording is made, the judge shall direct that the testimony be transcribed as soon as practicable. This transcribed record shall be certified by the judge. The judge shall promptly issue a written confirmatory search warrant and shall enter thereon the exact time of issuance of the duplicate original warrant. In all other respects, the method of issuance and contents of the warrant shall be that required by subsection (a) of this rule.
Note: Source-R.R. 3:2A-3, 3:2A-4 (second sentence); former rule redesignated paragraph (a) and paragraph (b) adopted July 26, 1984 to be effective September 10, 1984; paragraphs (a) and (b) amended July 13, 1994 to be effective September 1, 1994.
3:5-4. Secrecy
A search warrant shall be issued with all practicable secrecy and the affidavit or testimony upon which it is based shall not be filed with the criminal division manager's office or made public in any way prior to execution. The disclosure, prior to its execution, that a warrant has been applied for or issued, except as necessary for its execution, may constitute a contempt. After execution a warrant and accompanying papers shall remain confidential except as provided in R. 3:5-6(c).
Note: Source-R.R. 3:2A-9 (first paragraph); amended July 13, 1994 to be effective January 1, 1995; amended July 12, 2002 to be effective September 3, 2002.
3:5-5. Execution and Return With Inventory
(a) A search warrant may be executed by any law enforcement officer, including the Attorney General or county prosecutor or sheriff or members of their staffs. The warrant must be executed within 10 days after its issuance and within the hours fixed therein by the judge issuing it, unless for good cause shown the warrant provides for its execution at any time of day or night. The officer taking property under the warrant shall give to the person from whom or from whose premises the property is taken a copy of the warrant and a receipt for the property taken or shall leave the copy and receipt at the place from which the property is taken. The return shall be made promptly and shall be accompanied by a written inventory of any property taken. The inventory shall be made and verified by the officer executing the warrant in the presence of the person from whom or from whose premises the property is taken or, if such person is not present, in the presence of some other person. The judge shall upon request deliver a copy of the inventory to the person from whom or from whose premises the property was taken and to the applicant for the warrant.
(b) If a duplicate original search warrant has been executed, the person who executed the warrant shall enter the exact time of its execution on its face. If a tape or stenographic record of the oral testimony has been made, the judge shall require the applicant to sign a transcript of that record. In all other respects, execution and return of the duplicate original search warrant shall be that required by paragraph (a) of this rule.
Note: Source-R.R. 3:2A-4; former rule redesignated as paragraph (a) and paragraph (b) adopted July 26, 1984 to be effective September 10, 1984.
3:5-6. Filing; Confidentiality
(a) Except as provided in subsection b, the judge who issued the warrant shall attach thereto the return, inventory, and all other papers in connection therewith, including the affidavits and a transcript or summary of any oral testimony and, where applicable, a duplicate original search warrant, and shall file them with the criminal division manager's office of the county wherein the property was seized. When a tape or stenographic record has been made, it shall also be filed by the judge.
(b) In the event a search warrant is issued based in whole or in part on oral, wire, or electronic communications authorized by a wiretap judge under the provisions of the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1 et seq., the judge who issued the warrant shall file only with the wiretap judge the application for the search warrant and all other affidavits, documents and exhibits submitted in connection therewith, as well as any tape or stenographic record of oral testimony taken by the wiretap judge. The judge who issued the warrant shall file a notice of such filing with the wiretap judge, as aforesaid, together with the warrant and, where applicable, a duplicate original search warrant and inventory with the criminal division manager's office of the county wherein the property was seized.
(c) All warrants that have been completely executed and the papers accompanying them, including the affidavits, transcript or summary of any oral testimony, duplicate original search warrant, return and inventory, and any original tape or stenographic recording shall be confidential except that the warrant and accompanying papers shall be available for inspection and copying by the defendant as provided in R. 3:13-3 and by any person claiming to be aggrieved by an unlawful search and seizure upon notice to the county prosecutor for good cause shown.
Note: Source-R.R. 3:2A-5, 3:2A-9 (second paragraph). Amended June 29, 1973 to be effective September 10, 1973; amended July 26, 1984 to be effective September 10, 1984; paragraph designations and text of paragraph (b) adopted and paragraph (a) amended November 7, 1988 to be effective January 2, 1989; paragraphs (a) and (b) amended July 13, 1994, paragraph (c) amended December 9, 1994, to be effective January 1, 1995; paragraph (b) amended June 28, 1996 to be effective September 1, 1996; caption amended and paragraph (c) amended July 12, 2002 to be effective September 3, 2002.
3:5-7. Motion to Suppress Evidence and for Return of Property
(a) Notice; Time. On notice to the prosecutor of the county in which the matter is pending or threatened, to the applicant for the warrant if the search was with a warrant, and to co- indictees, if any, and in accordance with the applicable provisions of R. 1:6-3 and R. 3:10, a person claiming to be aggrieved by an unlawful search and seizure and having reasonable grounds to believe that the evidence obtained may be used against him or her in a penal proceeding, may apply to the Superior Court only and in the county in which the matter is pending or threatened to suppress the evidence and for the return of the property seized even though the offense charged or to be charged may be within the jurisdiction of a municipal court. Such motion shall be made pursuant to R. 3:10-2.
(b) Briefs. If the search was made with a warrant, a brief stating the facts and arguments in support of the motion shall be submitted with the notice of motion. The State shall, within ten days thereafter, submit a brief stating the facts and arguments in support of the search to which the movant may reply by brief submitted no later than three days before the hearing. If the search was made without a warrant, the State shall, within 15 days of the filing of the motion, file a brief, including a statement of the facts as it alleges them to be, and the movant shall file a brief and counter statement of facts no later than three days before the hearing.
(c) Hearing. All such motions by co- indictees shall be consolidated for determination in a single hearing, except for good cause shown. If material facts are disputed, testimony thereon shall be taken in open court.
(d) Appellate Review. Denial of a motion made pursuant to this rule may be reviewed on appeal from a judgment of conviction notwithstanding that such judgment is entered following a plea of guilty.
(e) Return of Property. If a motion made pursuant to this rule is granted, the property shall be delivered to the person entitled thereto, unless otherwise subject to lawful detention, and shall not be admissible in evidence in any court. Delivery of the property need not be made, however, until the expiration of the time within which the State may obtain leave to appeal pursuant to R. 2:5-6.
(f) Consequences of Failure to Move. If a timely motion is not made in accordance with this rule, the defendant shall be deemed to have waived any objection during trial to the admission of evidence on the ground that such evidence was unlawfully obtained.
(g) Effect of Irregularity in Warrant. In the absence of bad faith, no search or seizure made with a search warrant shall be deemed unlawful because of technical insufficiencies or irregularities in the warrant or in the papers or proceedings to obtain it, or in its execution.
Note: Source-R.R. 3:2A-6(a)(b). Paragraph (a) amended, paragraphs (b), (c), (d) adopted and former paragraphs (b), (c), (d) redesignated as (e), (f), (g) respectively January 28, 1977 to be effective immediately; paragraphs (a) and (c) amended July 16, 1979 to be effective September10, 1979; paragraph (a) amended July 16, 1981 to be effective September 14, 1981; paragraph (a) amended June 9, 1989 to be effective June 19, 1989; paragraph (a) amended July 13, 1994 to be effective January 1, 1995; paragraph (a) amended January 5, 1998 to be effective February 1, 1998.
3:5-8. Search and Seizure Without Search Warrant
Rule 3:5 shall not be construed to make illegal a lawful search and seizure made without a search warrant.
Note: Source-R.R. 3:2A-8.
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Friday, December 28, 2007
Arson and Related Offenses 2C:17-1
Arson and related offenses 2C:17-1
Kenneth Vercammen's Law office represents individuals charged from criminal and serious traffic violations throughout New Jersey.
Arson and related offenses 2C:17-1.
a. Aggravated arson. A person is guilty of aggravated arson, a crime of the second degree, if he starts a fire or causes an explosion, whether on his own property or another's:
(1) Thereby purposely or knowingly placing another person in danger of death or bodily injury; or
(2) With the purpose of destroying a building or structure of another; or
(3) With the purpose of collecting insurance for the destruction or damage to such property under circumstances which recklessly place any other person in danger of death or bodily injury; or
(4) With the purpose of destroying or damaging a structure in order to exempt the structure, completely or partially, from the provisions of any State, county or local zoning, planning or building law, regulation, ordinance or enactment under circumstances which recklessly place any other person in danger of death or bodily injury; or
(5) With the purpose of destroying or damaging any forest.
b. Arson. A person is guilty of arson, a crime of the third degree, if he purposely starts a fire or causes an explosion, whether on his own property or another's:
(1) Thereby recklessly placing another person in danger of death or bodily injury; or
(2) Thereby recklessly placing a building or structure of another in danger of damage or destruction; or
(3) With the purpose of collecting insurance for the destruction or damage to such property; or
(4) With the purpose of destroying or damaging a structure in order to exempt the structure, completely or partially, from the provisions of any State, county or local zoning, planning or building law, regulation, ordinance or enactment; or
(5) Thereby recklessly placing a forest in danger of damage or destruction.
c. Failure to control or report dangerous fire. A person who knows that a fire is endangering life or a substantial amount of property of another and either fails to take reasonable measures to put out or control the fire, when he can do so without substantial risk to himself, or to give prompt fire alarm, commits a crime of the fourth degree if:
(1) He knows that he is under an official, contractual, or other legal duty to prevent or combat the fire; or
(2) The fire was started, albeit lawfully, by him or with his assent, or on property in his custody or control.
d. Any person who, directly or indirectly, pays or accepts or offers to pay or accept any form of consideration including, but not limited to, money or any other pecuniary benefit, regardless of whether any consideration is actually exchanged for the purpose of starting a fire or causing an explosion in violation of this section commits a crime of the first degree.
e. Notwithstanding the provisions of any section of this Title to the contrary, if a person is convicted of aggravated arson pursuant to the provisions of subsection a. of this section and the structure which was the target of the offense was a health care facility or a physician's office, the sentence imposed shall include a term of imprisonment. The court may not suspend or make any other non custodial disposition of a person sentenced pursuant to the provisions of this subsection.
f. Definitions. "Structure" is defined in section 2C:18-1. Property is that of another, for the purpose of this section, if any one other than the actor has a possessory, or legal or equitable proprietary interest therein. Property is that of another for the purpose of this section, if anyone other than the actor has a legal or equitable interest in the property including, but not limited to, a mortgage, pledge, lien or security interest therein. If a building or structure is divided into separately occupied units, any unit not occupied by the actor is an occupied structure of another. As used in this section, "forest" means and includes any forest, brush land, grass land, salt marsh, wooded area and any combination thereof, including but not limited to, an open space area, public lands, wetlands, park lands, natural habitats, a State conservation area, a wildlife refuge area or any other designated undeveloped open space whether or not it is subject to specific protection under law.
As used in this section, "health care facility" means health care facility as defined in section 2 of P.L. 1971, c.136 (C. 26:2H-2).
g. Notwithstanding the provisions of any section of this Title to the contrary, if a person is convicted pursuant to the provisions of subsection a., b. or d. of this section and the structure which was the target of the offense was a church, synagogue, temple or other place of public worship, that person commits a crime of the first degree and the sentence imposed shall include a term of imprisonment. The term of imprisonment shall include a minimum term of 15 years, during which the defendant shall be ineligible for parole. The court may not suspend or make any other non custodial disposition of a person sentenced pursuant to the provisions of this subsection.
Amended 1979, c.178, s.29; 1981, c.290, s.16; 1991, c.498; 1997, c.108; 1997, c.109.
2C:17-2. Causing or Risking Widespread Injury or Damage.
a. (1) A person who, purposely or knowingly, unlawfully causes an explosion, flood, avalanche, collapse of a building, release or abandonment of poison gas, radioactive material or any other harmful or destructive substance commits a crime of the second degree. A person who, purposely or knowingly, unlawfully causes widespread injury or damage in any manner commits a crime of the second degree.
(2)A person who, purposely or knowingly, unlawfully causes a hazardous discharge required to be reported pursuant to the "Spill Compensation and Control Act," P.L. 1976, c.141 (C.58:10-23.11 et seq.) or any rules and regulations adopted pursuant thereto, or who, purposely or knowingly, unlawfully causes a release or abandonment of hazardous waste as defined in section 1 of P.L. 1976, c.99 (C. 13:1E-38) or a toxic pollutant as defined in section 3 of P.L. 1977, c.74 (C. 58:10A-3) commits a crime of the second degree. Any person who recklessly violates the provisions of this paragraph is guilty of a crime of the third degree.
b. A person who recklessly causes widespread injury or damage is guilty of a crime of the third degree.
c. A person who recklessly creates a risk of widespread injury or damage commits a crime of the fourth degree, even if no such injury or damage occurs. A violation of this subsection is a crime of the third degree if the risk of widespread injury or damage results from the reckless handling or storage of hazardous materials. A violation of this subsection is a crime of the second degree if the handling or storage of hazardous materials violated any law, rule or regulation intended to protect the public health and safety.
d. A person who knowingly or recklessly fails to take reasonable measures to prevent or mitigate widespread injury or damage commits a crime of the fourth degree, if:
(1)He knows that he is under an official, contractual or other legal duty to take such measures; or
(2)He did or assented to the act causing or threatening the injury or damage.
e. For purposes of this section, widespread injury or damage means serious bodily injury to five or more people or damage to five or more habitations or to a building which would normally have contained 25 or more persons at the time of the offense.
Amended 1979, c.178, s. 29A; 1985, c.348, s.1; 1997, c.325, s.2; 2002, c.26, s.12.
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Telephone Consultation Program New Article of the Week
Meet with an experienced Attorney to handle your important legal needs.
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Kenneth Vercammen's Law office represents individuals charged with criminal, drug offenses, and serious traffic violations throughout New Jersey. Our office helps people with traffic/ municipal court tickets including drivers charged with Driving While Intoxicated, Refusal and Driving While Suspended.
Kenneth Vercammen was the NJ State Bar Municipal Court Attorney of the Year and past president of the Middlesex County Municipal Prosecutor's Association.
Criminal and Motor vehicle violations can cost you. You will have to pay fines in court or receive points on your drivers license. An accumulation of too many points, or certain moving violations may require you to pay expensive surcharges to the N.J. DMV [Division of Motor Vehicles] or have your license suspended. Don't give up! The Law Office of Kenneth Vercammen can provide experienced attorney representation for criminal motor vehicle violations.
When your job or driver's license is in jeopardy or you are facing thousands of dollars in fines, DMV surcharges and car insurance increases, you need excellent legal representation. The least expensive attorney is not always the answer. Schedule an appointment if you need experienced legal representation in a traffic/municipal court matter.
Our website www.njlaws.com provides information on traffic offenses we can be retained to represent people. Our website also provides details on jail terms for traffic violations and car insurance eligibility points. Car insurance companies increase rates or drop customers based on moving violations.
Kenneth Vercammen's Law office represents individuals charged from criminal and serious traffic violations throughout New Jersey.
Arson and related offenses 2C:17-1.
a. Aggravated arson. A person is guilty of aggravated arson, a crime of the second degree, if he starts a fire or causes an explosion, whether on his own property or another's:
(1) Thereby purposely or knowingly placing another person in danger of death or bodily injury; or
(2) With the purpose of destroying a building or structure of another; or
(3) With the purpose of collecting insurance for the destruction or damage to such property under circumstances which recklessly place any other person in danger of death or bodily injury; or
(4) With the purpose of destroying or damaging a structure in order to exempt the structure, completely or partially, from the provisions of any State, county or local zoning, planning or building law, regulation, ordinance or enactment under circumstances which recklessly place any other person in danger of death or bodily injury; or
(5) With the purpose of destroying or damaging any forest.
b. Arson. A person is guilty of arson, a crime of the third degree, if he purposely starts a fire or causes an explosion, whether on his own property or another's:
(1) Thereby recklessly placing another person in danger of death or bodily injury; or
(2) Thereby recklessly placing a building or structure of another in danger of damage or destruction; or
(3) With the purpose of collecting insurance for the destruction or damage to such property; or
(4) With the purpose of destroying or damaging a structure in order to exempt the structure, completely or partially, from the provisions of any State, county or local zoning, planning or building law, regulation, ordinance or enactment; or
(5) Thereby recklessly placing a forest in danger of damage or destruction.
c. Failure to control or report dangerous fire. A person who knows that a fire is endangering life or a substantial amount of property of another and either fails to take reasonable measures to put out or control the fire, when he can do so without substantial risk to himself, or to give prompt fire alarm, commits a crime of the fourth degree if:
(1) He knows that he is under an official, contractual, or other legal duty to prevent or combat the fire; or
(2) The fire was started, albeit lawfully, by him or with his assent, or on property in his custody or control.
d. Any person who, directly or indirectly, pays or accepts or offers to pay or accept any form of consideration including, but not limited to, money or any other pecuniary benefit, regardless of whether any consideration is actually exchanged for the purpose of starting a fire or causing an explosion in violation of this section commits a crime of the first degree.
e. Notwithstanding the provisions of any section of this Title to the contrary, if a person is convicted of aggravated arson pursuant to the provisions of subsection a. of this section and the structure which was the target of the offense was a health care facility or a physician's office, the sentence imposed shall include a term of imprisonment. The court may not suspend or make any other non custodial disposition of a person sentenced pursuant to the provisions of this subsection.
f. Definitions. "Structure" is defined in section 2C:18-1. Property is that of another, for the purpose of this section, if any one other than the actor has a possessory, or legal or equitable proprietary interest therein. Property is that of another for the purpose of this section, if anyone other than the actor has a legal or equitable interest in the property including, but not limited to, a mortgage, pledge, lien or security interest therein. If a building or structure is divided into separately occupied units, any unit not occupied by the actor is an occupied structure of another. As used in this section, "forest" means and includes any forest, brush land, grass land, salt marsh, wooded area and any combination thereof, including but not limited to, an open space area, public lands, wetlands, park lands, natural habitats, a State conservation area, a wildlife refuge area or any other designated undeveloped open space whether or not it is subject to specific protection under law.
As used in this section, "health care facility" means health care facility as defined in section 2 of P.L. 1971, c.136 (C. 26:2H-2).
g. Notwithstanding the provisions of any section of this Title to the contrary, if a person is convicted pursuant to the provisions of subsection a., b. or d. of this section and the structure which was the target of the offense was a church, synagogue, temple or other place of public worship, that person commits a crime of the first degree and the sentence imposed shall include a term of imprisonment. The term of imprisonment shall include a minimum term of 15 years, during which the defendant shall be ineligible for parole. The court may not suspend or make any other non custodial disposition of a person sentenced pursuant to the provisions of this subsection.
Amended 1979, c.178, s.29; 1981, c.290, s.16; 1991, c.498; 1997, c.108; 1997, c.109.
2C:17-2. Causing or Risking Widespread Injury or Damage.
a. (1) A person who, purposely or knowingly, unlawfully causes an explosion, flood, avalanche, collapse of a building, release or abandonment of poison gas, radioactive material or any other harmful or destructive substance commits a crime of the second degree. A person who, purposely or knowingly, unlawfully causes widespread injury or damage in any manner commits a crime of the second degree.
(2)A person who, purposely or knowingly, unlawfully causes a hazardous discharge required to be reported pursuant to the "Spill Compensation and Control Act," P.L. 1976, c.141 (C.58:10-23.11 et seq.) or any rules and regulations adopted pursuant thereto, or who, purposely or knowingly, unlawfully causes a release or abandonment of hazardous waste as defined in section 1 of P.L. 1976, c.99 (C. 13:1E-38) or a toxic pollutant as defined in section 3 of P.L. 1977, c.74 (C. 58:10A-3) commits a crime of the second degree. Any person who recklessly violates the provisions of this paragraph is guilty of a crime of the third degree.
b. A person who recklessly causes widespread injury or damage is guilty of a crime of the third degree.
c. A person who recklessly creates a risk of widespread injury or damage commits a crime of the fourth degree, even if no such injury or damage occurs. A violation of this subsection is a crime of the third degree if the risk of widespread injury or damage results from the reckless handling or storage of hazardous materials. A violation of this subsection is a crime of the second degree if the handling or storage of hazardous materials violated any law, rule or regulation intended to protect the public health and safety.
d. A person who knowingly or recklessly fails to take reasonable measures to prevent or mitigate widespread injury or damage commits a crime of the fourth degree, if:
(1)He knows that he is under an official, contractual or other legal duty to take such measures; or
(2)He did or assented to the act causing or threatening the injury or damage.
e. For purposes of this section, widespread injury or damage means serious bodily injury to five or more people or damage to five or more habitations or to a building which would normally have contained 25 or more persons at the time of the offense.
Amended 1979, c.178, s. 29A; 1985, c.348, s.1; 1997, c.325, s.2; 2002, c.26, s.12.
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Telephone Consultation Program New Article of the Week
Meet with an experienced Attorney to handle your important legal needs.
Please call the office to schedule a confidential "in Office" consultation.
Attorneys are not permitted to provide legal advice by email.
Kenneth Vercammen's Law office represents individuals charged with criminal, drug offenses, and serious traffic violations throughout New Jersey. Our office helps people with traffic/ municipal court tickets including drivers charged with Driving While Intoxicated, Refusal and Driving While Suspended.
Kenneth Vercammen was the NJ State Bar Municipal Court Attorney of the Year and past president of the Middlesex County Municipal Prosecutor's Association.
Criminal and Motor vehicle violations can cost you. You will have to pay fines in court or receive points on your drivers license. An accumulation of too many points, or certain moving violations may require you to pay expensive surcharges to the N.J. DMV [Division of Motor Vehicles] or have your license suspended. Don't give up! The Law Office of Kenneth Vercammen can provide experienced attorney representation for criminal motor vehicle violations.
When your job or driver's license is in jeopardy or you are facing thousands of dollars in fines, DMV surcharges and car insurance increases, you need excellent legal representation. The least expensive attorney is not always the answer. Schedule an appointment if you need experienced legal representation in a traffic/municipal court matter.
Our website www.njlaws.com provides information on traffic offenses we can be retained to represent people. Our website also provides details on jail terms for traffic violations and car insurance eligibility points. Car insurance companies increase rates or drop customers based on moving violations.
Arrest for Criminal Violation and Right to Remain Silent
Arrest for a Criminal Violation and Right to Remain Silent " Miranda Rights"
1. Tell The Police Officer or Detective that you wish to talk to your Lawyer. Repeat this request to every officer who speaks to you. 2. Identify yourself, if asked. If the incident is related to a motor vehicle, produce your license, registration, and insurance card. 3. Beyond identifying yourself, give no other information. Answer NO other questions. SIGN NOTHING. If you are asked any other questions, reply politely, "I would rather not discuss it². 4. Call your lawyer at the first opportunity. NOTE: If you are arrested for Drunk Driving in New Jersey, you must give breath samples before you call your Lawyer. You are not required to do field sobriety tests such as walking a straight line, Remember: Even a fish would not get caught if they kept their mouth closed. OJ remained silent and is playing golf today. [Copyright 1985-1986 Alan Marain]
The Fifth Amendment to the United States Constitution prohibits the use of involuntary statements and confessions at trial. The State bears the burden of proof in a motion to suppress a statement allegedly obtained in violation of the Miranda doctrine. New Jersey requires the higher standard of beyond a reasonable doubt when the court determines if Miranda has not been fully complied with. State v Yough 49 NJ 587, 600-601 (1967), State v Whittington 142 NJ Super. 45, 49-50 (App. Div. 1976), State v Flower 224 NJ Super. 208, 213 (Law Div 1987) aff'd per curiam 224 NJ Super. 90 (App. Div. 1988).
WHAT IS INTERROGATION? As set forth in NJ Practice , Vol. 32 Criminal Practice and Procedure (West 1998) Section 755, the United States Supreme Court in Rhode Island V Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) held that the term "interrogation" under Miranda refers not only to express questioning but also to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect. It is "an established principle of our federalist system" that states may afford "individual liberties more expansive than those afforded by the federal constitution." State v Novembrino 105 NJ 95, 144-145 (1987).
Generally, a statement given by a defendant is not admissible in a criminal case unless the court is satisfied beyond a reasonable doubt that the defendant was informed of his Miranda rights before giving the statement and "in light of all the circumstances attending the confession it was given voluntarily." State v Hampton 61 NJ 250, 272 (1972). What is at stake is ensuring the use of effective procedural safeguards to secure the right of the Fifth Amendment to the United States Constitution that " no person shall be.... compelled in any criminal case to be a witness against himself," which is now made applicable to state action by the Due Process Clause of the Fourteenth Amendment. However, once informed of his rights " a defendant may waive effectuation of these rights provided the waiver is made voluntarily, knowingly and intelligently." State v Flower 224 NJ Super. 208, 213 (Law Div 1987) aff'd per curiam 224 NJ Super. 90 (App. Div. 1988). citing Miranda v Arizona 384 US 436, 444, 86 S. Ct 1602, 1612, 16 L. Ed 2d 694 (1966); emphasis in Flower. In State v Flower 224 NJ Super. 208, 213 (Law Div 1987) aff'd per curiam 224 NJ Super. 90 (App. Div. 1988), the defendant had a low IQ and limited vocabulary. He gave confessions to police and a confession to DYFS. The court excluded the confession to the police, even though Miranda warnings were given and there was lack of coercion and an admitted waiver of rights by the defendant. The court concluded that since the Defendant could not understand his Miranda rights, he could not waive them. One cannot knowingly and intelligently waive a right that he cannot understand or appreciate. 224 NJ Super. at 216. The court also excluded confessions to a DYFS investigator on the same grounds since she was acting in a law enforcement capacity and failed to inform Defendant of his Miranda rights. Id at 220. Where it is charged that a confession was given under the influence of narcotics or during a withdrawal period, the central question of voluntariness remains the same, and the trial court must scrutinize all the pertinent facts attending the confession with particular focus on Defendant's demeanor, coherence, articulateness, capacity to full use of his faculties, his memory and his overall intelligence. State v Arcediano 371 F. Supp. 457 (D. NJ 1974); See also Wade v Yeager 245 F. Supp 62 (D. NJ 1964).
The State must prove beyond a reasonable doubt that the waiver was made knowingly and intelligently. If the suspect is intoxicated or under the influence of drugs to the point that he cannot understand his constitutional rights, then any waiver is void. If the suspect is suffering from a mental disability which renders him incapable of understanding his constitutional rights, then any waiver is void. The level of mental disability which would render a suspect incapable of understanding his constitutional rights is probably close to the point at which the suspect could be said to be incapable of managing his own affairs. Where circumstances cast doubt on knowing and intelligent quality of alleged waiver of right to counsel, there can be no waiver. State vs. Dickens 192 NJ Super. 290 (App. Div. 1983). Intoxication is grounds to suppress statements. See e.g. Common vs. Brithsher 563 A.2d 502, App granted 575 A.2d 107. (If Defendant's intoxication combined to render him incapable of understanding Miranda warning waiver of Miranda rights would be invalid); Common vs. Andel 477 A.2d 13 56 (1984); (Defendant's waiver of his Miranda rights was vitiated by his intoxication, his eyes glaring and had a strong odor of alcohol. Statements made by defendant while in custody should suppressed.) The court has always set high standards of proof for the waiver of constitutional rights Johnson vs. Zerbst 304 US 458 58 S. Court 1019, 82 Ed 146 (1938). In Common vs. Hosey 334 NE 2d 44 ( Mass 75 ) the court reversed and remanded a matter where tried judge allowed admission of defendant's statement to police where defendant was extremely high, extremely emotional and detected from reality. Due process requires not only that a conviction not be based on an involuntary confession but also that a trial court hold what has become known as a Jackson Denno hearing when a defendant contests the voluntariness of his statement. Miller vs. Dugger 838 F. 2d 1530 ( 11 Cir. 1988) cert. den 486 US 1061. 1085.S. Ct. 2832 100 L. Ed 2d 933 (1988). At the Jackson- Denno hearing and at oral argument, we will explain through cross-examination and witnesses the involuntary nature of any statements the state intends to produce.
CALL KENNETH A. VERCAMMEN, ESQ. 732-572-0500 For an Appointment
About Kenneth Vercammen:
Kenneth Vercammen is a Litigation Attorney in Edison, NJ, approximately 17 miles north of Princeton. He often lectures for the American Bar Association and New Jersey State Bar Association on personal injury, criminal / municipal court law and practices to improve service to clients. He has published 125 articles in national and New Jersey publications on trial and litigation topics. He has served as a Special Acting Prosecutor in seven different cities and towns in New Jersey.
In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey several times each week on many personal injury matters, Municipal Court trials, and contested administrative law hearings.
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Telephone Consultation Program New Article of the Week
Meet with an experienced Attorney to handle your important legal needs.
Please call the office to schedule a confidential "in Office" consultation.
Attorneys are not permitted to provide legal advice by email.
Kenneth Vercammen's Law office represents individuals charged with criminal, drug offenses, and serious traffic violations throughout New Jersey. Our office helps people with traffic/ municipal court tickets including drivers charged with Driving While Intoxicated, Refusal and Driving While Suspended.
Kenneth Vercammen was the NJ State Bar Municipal Court Attorney of the Year and past president of the Middlesex County Municipal Prosecutor's Association.
Criminal and Motor vehicle violations can cost you. You will have to pay fines in court or receive points on your drivers license. An accumulation of too many points, or certain moving violations may require you to pay expensive surcharges to the N.J. DMV [Division of Motor Vehicles] or have your license suspended. Don't give up! The Law Office of Kenneth Vercammen can provide experienced attorney representation for criminal motor vehicle violations.
When your job or driver's license is in jeopardy or you are facing thousands of dollars in fines, DMV surcharges and car insurance increases, you need excellent legal representation. The least expensive attorney is not always the answer. Schedule an appointment if you need experienced legal representation in a traffic/municipal court matter.
Our website www.njlaws.com provides information on traffic offenses we can be retained to represent people. Our website also provides details on jail terms for traffic violations and car insurance eligibility points. Car insurance companies increase rates or drop customers based on moving violations.
1. Tell The Police Officer or Detective that you wish to talk to your Lawyer. Repeat this request to every officer who speaks to you. 2. Identify yourself, if asked. If the incident is related to a motor vehicle, produce your license, registration, and insurance card. 3. Beyond identifying yourself, give no other information. Answer NO other questions. SIGN NOTHING. If you are asked any other questions, reply politely, "I would rather not discuss it². 4. Call your lawyer at the first opportunity. NOTE: If you are arrested for Drunk Driving in New Jersey, you must give breath samples before you call your Lawyer. You are not required to do field sobriety tests such as walking a straight line, Remember: Even a fish would not get caught if they kept their mouth closed. OJ remained silent and is playing golf today. [Copyright 1985-1986 Alan Marain]
The Fifth Amendment to the United States Constitution prohibits the use of involuntary statements and confessions at trial. The State bears the burden of proof in a motion to suppress a statement allegedly obtained in violation of the Miranda doctrine. New Jersey requires the higher standard of beyond a reasonable doubt when the court determines if Miranda has not been fully complied with. State v Yough 49 NJ 587, 600-601 (1967), State v Whittington 142 NJ Super. 45, 49-50 (App. Div. 1976), State v Flower 224 NJ Super. 208, 213 (Law Div 1987) aff'd per curiam 224 NJ Super. 90 (App. Div. 1988).
WHAT IS INTERROGATION? As set forth in NJ Practice , Vol. 32 Criminal Practice and Procedure (West 1998) Section 755, the United States Supreme Court in Rhode Island V Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) held that the term "interrogation" under Miranda refers not only to express questioning but also to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect. It is "an established principle of our federalist system" that states may afford "individual liberties more expansive than those afforded by the federal constitution." State v Novembrino 105 NJ 95, 144-145 (1987).
Generally, a statement given by a defendant is not admissible in a criminal case unless the court is satisfied beyond a reasonable doubt that the defendant was informed of his Miranda rights before giving the statement and "in light of all the circumstances attending the confession it was given voluntarily." State v Hampton 61 NJ 250, 272 (1972). What is at stake is ensuring the use of effective procedural safeguards to secure the right of the Fifth Amendment to the United States Constitution that " no person shall be.... compelled in any criminal case to be a witness against himself," which is now made applicable to state action by the Due Process Clause of the Fourteenth Amendment. However, once informed of his rights " a defendant may waive effectuation of these rights provided the waiver is made voluntarily, knowingly and intelligently." State v Flower 224 NJ Super. 208, 213 (Law Div 1987) aff'd per curiam 224 NJ Super. 90 (App. Div. 1988). citing Miranda v Arizona 384 US 436, 444, 86 S. Ct 1602, 1612, 16 L. Ed 2d 694 (1966); emphasis in Flower. In State v Flower 224 NJ Super. 208, 213 (Law Div 1987) aff'd per curiam 224 NJ Super. 90 (App. Div. 1988), the defendant had a low IQ and limited vocabulary. He gave confessions to police and a confession to DYFS. The court excluded the confession to the police, even though Miranda warnings were given and there was lack of coercion and an admitted waiver of rights by the defendant. The court concluded that since the Defendant could not understand his Miranda rights, he could not waive them. One cannot knowingly and intelligently waive a right that he cannot understand or appreciate. 224 NJ Super. at 216. The court also excluded confessions to a DYFS investigator on the same grounds since she was acting in a law enforcement capacity and failed to inform Defendant of his Miranda rights. Id at 220. Where it is charged that a confession was given under the influence of narcotics or during a withdrawal period, the central question of voluntariness remains the same, and the trial court must scrutinize all the pertinent facts attending the confession with particular focus on Defendant's demeanor, coherence, articulateness, capacity to full use of his faculties, his memory and his overall intelligence. State v Arcediano 371 F. Supp. 457 (D. NJ 1974); See also Wade v Yeager 245 F. Supp 62 (D. NJ 1964).
The State must prove beyond a reasonable doubt that the waiver was made knowingly and intelligently. If the suspect is intoxicated or under the influence of drugs to the point that he cannot understand his constitutional rights, then any waiver is void. If the suspect is suffering from a mental disability which renders him incapable of understanding his constitutional rights, then any waiver is void. The level of mental disability which would render a suspect incapable of understanding his constitutional rights is probably close to the point at which the suspect could be said to be incapable of managing his own affairs. Where circumstances cast doubt on knowing and intelligent quality of alleged waiver of right to counsel, there can be no waiver. State vs. Dickens 192 NJ Super. 290 (App. Div. 1983). Intoxication is grounds to suppress statements. See e.g. Common vs. Brithsher 563 A.2d 502, App granted 575 A.2d 107. (If Defendant's intoxication combined to render him incapable of understanding Miranda warning waiver of Miranda rights would be invalid); Common vs. Andel 477 A.2d 13 56 (1984); (Defendant's waiver of his Miranda rights was vitiated by his intoxication, his eyes glaring and had a strong odor of alcohol. Statements made by defendant while in custody should suppressed.) The court has always set high standards of proof for the waiver of constitutional rights Johnson vs. Zerbst 304 US 458 58 S. Court 1019, 82 Ed 146 (1938). In Common vs. Hosey 334 NE 2d 44 ( Mass 75 ) the court reversed and remanded a matter where tried judge allowed admission of defendant's statement to police where defendant was extremely high, extremely emotional and detected from reality. Due process requires not only that a conviction not be based on an involuntary confession but also that a trial court hold what has become known as a Jackson Denno hearing when a defendant contests the voluntariness of his statement. Miller vs. Dugger 838 F. 2d 1530 ( 11 Cir. 1988) cert. den 486 US 1061. 1085.S. Ct. 2832 100 L. Ed 2d 933 (1988). At the Jackson- Denno hearing and at oral argument, we will explain through cross-examination and witnesses the involuntary nature of any statements the state intends to produce.
CALL KENNETH A. VERCAMMEN, ESQ. 732-572-0500 For an Appointment
About Kenneth Vercammen:
Kenneth Vercammen is a Litigation Attorney in Edison, NJ, approximately 17 miles north of Princeton. He often lectures for the American Bar Association and New Jersey State Bar Association on personal injury, criminal / municipal court law and practices to improve service to clients. He has published 125 articles in national and New Jersey publications on trial and litigation topics. He has served as a Special Acting Prosecutor in seven different cities and towns in New Jersey.
In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey several times each week on many personal injury matters, Municipal Court trials, and contested administrative law hearings.
Receive free NJ Laws Email newsletter with current laws and cases
Telephone Consultation Program New Article of the Week
Meet with an experienced Attorney to handle your important legal needs.
Please call the office to schedule a confidential "in Office" consultation.
Attorneys are not permitted to provide legal advice by email.
Kenneth Vercammen's Law office represents individuals charged with criminal, drug offenses, and serious traffic violations throughout New Jersey. Our office helps people with traffic/ municipal court tickets including drivers charged with Driving While Intoxicated, Refusal and Driving While Suspended.
Kenneth Vercammen was the NJ State Bar Municipal Court Attorney of the Year and past president of the Middlesex County Municipal Prosecutor's Association.
Criminal and Motor vehicle violations can cost you. You will have to pay fines in court or receive points on your drivers license. An accumulation of too many points, or certain moving violations may require you to pay expensive surcharges to the N.J. DMV [Division of Motor Vehicles] or have your license suspended. Don't give up! The Law Office of Kenneth Vercammen can provide experienced attorney representation for criminal motor vehicle violations.
When your job or driver's license is in jeopardy or you are facing thousands of dollars in fines, DMV surcharges and car insurance increases, you need excellent legal representation. The least expensive attorney is not always the answer. Schedule an appointment if you need experienced legal representation in a traffic/municipal court matter.
Our website www.njlaws.com provides information on traffic offenses we can be retained to represent people. Our website also provides details on jail terms for traffic violations and car insurance eligibility points. Car insurance companies increase rates or drop customers based on moving violations.
Affirmative Defenses 2C:2-5
Affirmative defenses 2C:2-5
Kenneth Vercammen's Law office represents individuals charged from criminal and serious traffic violations throughout New Jersey.
Affirmative defenses 2C:2-5. Defenses generally Conduct which would otherwise be an offense is excused or alleviated by reason of any defense now provided by law for which neither the code nor other statutory law defining the offense provides exceptions or defenses dealing with the specific situation involved and a legislative purpose to exclude the defense claimed does not otherwise plainly appear.
L.1978, c. 95, s. 2C:2-5, eff. Sept. 1, 1979.
2C:2-6. Liability for conduct of another; complicity a. A person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable, or both.
b. A person is legally accountable for the conduct of another person when:
(1) Acting with the kind of culpability that is sufficient for the commission of the offense, he causes an innocent or irresponsible person to engage in such conduct;
(2) He is made accountable for the conduct of such other person by the code or by the law defining the offense;
(3) He is an accomplice of such other person in the commission of an offense; or
(4) He is engaged in a conspiracy with such other person.
c. A person is an accomplice of another person in the commission of an offense if:
(1) With the purpose of promoting or facilitating the commission of the offense; he
(a) Solicits such other person to commit it;
(b) Aids or agrees or attempts to aid such other person in planning or committing it; or
(c) Having a legal duty to prevent the commission of the offense, fails to make proper effort so to do; or
(2) His conduct is expressly declared by law to establish his complicity.
d. A person who is legally incapable of committing a particular offense himself may be guilty thereof if it is committed by another person for whose conduct he is legally accountable, unless such liability is inconsistent with the purpose of the provision establishing his incapacity.
e. Unless otherwise provided by the code or by the law defining the offense, a person is not an accomplice in an offense committed by another person if:
(1) He is a victim of that offense;
(2) The offense is so defined that his conduct is inevitably incident to its commission; or
(3) He terminates his complicity under circumstances manifesting a complete and voluntary renunciation as defined in section 2C:5-1 d. prior to the commission of the offense. Termination by renunciation is an affirmative defense which the defendant must prove by a preponderance of evidence.
f. An accomplice may be convicted on proof of the commission of the offense and of his complicity therein, though the person claimed to have committed the offense has not been prosecuted or convicted or has been convicted of a different offense or degree of offense or has an immunity to prosecution or conviction or has been acquitted.
L.1978, c. 95, s. 2C:2-6, eff. Sept. 1, 1979.
2C:2-7. Liability of corporations and persons acting, or under a duty to act, in their behalf a. A corporation may be convicted of the commission of an offense if:
(1) The conduct constituting the offense is engaged in by an agent of the corporation while acting within the scope of his employment and in behalf of the corporation unless the offense is one defined by a statute which indicates a legislative purpose not to impose criminal liability on corporations. If the law governing the offense designates the agents for whose conduct the corporation is accountable or the circumstances under which it is accountable, such provisions shall apply;
(2) The offense consists of an omission to discharge a specific duty of affirmative performance imposed on corporations by law; or
(3) The conduct constituting the offense is engaged in, authorized, solicited, requested, commanded, or recklessly tolerated by the board of directors or by a high managerial agent acting within the scope of his employment and in behalf of the corporation.
b. As used in this section:
(1) "Corporation" does not include an entity organized as or by a governmental agency for the execution of a governmental program;
(2) "Agent" means any director, officer, servant, employee or other person authorized to act in behalf of the corporation;
(3) "High managerial agent" means an officer of a corporation or any other agent of a corporation having duties of such responsibility that his conduct may fairly be assumed to represent the policy of the corporation.
c. In any prosecution of a corporation for the commission of an offense included within the terms of subsection a. (1) of this section, other than an offense for which absolute liability has been imposed, it shall be a defense if the defendant proves by a preponderance of evidence that the high managerial agent having supervisory responsibility over the subject matter of the offense employed due diligence to prevent its commission. This paragraph shall not apply if it is plainly inconsistent with the legislative purpose in defining the particular offense.
d. Nothing in this section imposing liability upon a corporation shall be construed as limiting the liability for an offense of an individual by reason of his being an agent of the corporation.
L.1978, c. 95, s. 2C:2-7, eff. Sept. 1, 1979.
2C:2-8. Intoxication
a. Except as provided in subsection d. of this section, intoxication of the actor is not a defense unless it negatives an element of the offense.
b. When recklessness establishes an element of the offense, if the actor, due to self-induced intoxication, is unaware of a risk of which he would have been aware had he been sober, such unawareness is immaterial.
c. Intoxication does not, in itself, constitute mental disease within the meaning of chapter 4.
d. Intoxication which (1) is not self-induced or (2) is pathological is an affirmative defense if by reason of such intoxication the actor at the time of his conduct did not know the nature and quality of the act he was doing, or if he did know it, that he did not know what he was doing was wrong. Intoxication under this subsection must be proved by clear and convincing evidence.
e. Definitions. In this section unless a different meaning plainly is required:
(1) "Intoxication" means a disturbance of mental or physical capacities resulting from the introduction of substances into the body;
(2) "Self-induced intoxication" means intoxication caused by substances which the actor knowingly introduces into his body, the tendency of which to cause intoxication he knows or ought to know, unless he introduces them pursuant to medical advice or under such circumstances as would afford a defense to a charge of crime;
(3) "Pathological intoxication" means intoxication grossly excessive in degree, given the amount of the intoxicant, to which the actor does not know he is susceptible.
L.1978, c. 95, s. 2C:2-8, eff. Sept. 1, 1979. Amended by L.1983, c. 306, s. 1, eff. Aug. 26, 1983.
2C:2-9. Duress a. Subject to subsection b. of this section, it is an affirmative defense that the actor engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, which a person of reasonable firmness in his situation would have been unable to resist.
b. The defense provided by this section is unavailable if the actor recklessly placed himself in a situation in which it was probable that he would be subjected to duress. The defense is also unavailable if he was criminally negligent in placing himself in such a situation, whenever criminal negligence suffices to establish culpability for the offense charged. In a prosecution for murder, the defense is only available to reduce the degree of the crime to manslaughter.
c. It is not a defense that a woman acted on the command of her husband, unless she acted under such coercion as would establish a defense under this section. The presumption that a woman, acting in the presence of her husband, is coerced is abolished.
L.1978, c. 95, s. 2C:2-9, eff. Sept. 1, 1979.
2C:2-10. Consent a. In general. The consent of the victim to conduct charged to constitute an offense or to the result thereof is a defense if such consent negatives an element of the offense or precludes the infliction of the harm or evil sought to be prevented by the law defining the offense.
b. Consent to bodily harm. When conduct is charged to constitute an offense because it causes or threatens bodily harm, consent to such conduct or to the infliction of such harm is a defense if:
(1) The bodily harm consented to or threatened by the conduct consented to is not serious; or
(2) The conduct and the harm are reasonably foreseeable hazards of joint participation in a concerted activity of a kind not forbidden by law; or
(3) The consent establishes a justification for the conduct under chapter 3 of the code.
c. Ineffective consent. Unless otherwise provided by the code or by the law defining the offense, assent does not constitute consent if:
(1) It is given by a person who is legally incompetent to authorize the conduct charged to constitute the offense; or
(2) It is given by a person who by reason of youth, mental disease or defect or intoxication is manifestly unable or known by the actor to be unable to make a reasonable judgment as to the nature of harmfulness of the conduct charged to constitute an offense; or
(3) It is induced by force, duress or deception of a kind sought to be prevented by the law defining the offense.
L.1978, c. 95, s. 2C:2-10, eff. Sept. 1, 1979.
2C:2-11. De minimis infractions
The assignment judge may dismiss a prosecution if, having regard to the nature of the conduct charged to constitute an offense and the nature of the attendant circumstances, it finds that the defendant's conduct:
a. Was within a customary license or tolerance, neither expressly negated by the person whose interest was infringed nor inconsistent with the purpose of the law defining the offense;
b. Did not actually cause or threaten the harm or evil sought to be prevented by the law defining the offense or did so only to an extent too trivial to warrant the condemnation of conviction; or
c. Presents such other extenuations that it cannot reasonably be regarded as envisaged by the Legislature in forbidding the offense. The assignment judge shall not dismiss a prosecution under this section without giving the prosecutor notice and an opportunity to be heard. The prosecutor shall have a right to appeal any such dismissal.
L.1978, c. 95, s. 2C:2-11, eff. Sept. 1, 1979.
2C:2-12. Entrapment a. A public law enforcement official or a person engaged in cooperation with such an official or one acting as an agent of a public law enforcement official perpetrates an entrapment if for the purpose of obtaining evidence of the commission of an offense, he induces or encourages and, as a direct result, causes another person to engage in conduct constituting such offense by either:
(1) Making knowingly false representations designed to induce the belief that such conduct is not prohibited; or
(2) Employing methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it.
b. Except as provided in subsection c. of this section, a person prosecuted for an offense shall be acquitted if he proves by a preponderance of evidence that his conduct occurred in response to an entrapment. The issue of entrapment shall be tried by the trier of fact.
c. The defense afforded by this section is unavailable when causing or threatening bodily injury is an element of the offense charged and the prosecution is based on conduct causing or threatening such injury to a person other than the person perpetrating the entrapment.
L.1978, c. 95, s. 2C:2-12, eff. Sept. 1, 1979. Amended by L.1979, c. 178, s. 9, eff. Sept. 1, 1979.
2C:3-1. Justification an affirmative defense; civil remedies unaffected a. In any prosecution based on conduct which is justifiable under this chapter, justification is an affirmative defense.
b. The fact that conduct is justifiable under this chapter does not abolish or impair any remedy for such conduct which is available in any civil action.
L.1978, c. 95, s. 2C:3-1, eff. Sept. 1, 1979.
2C:3-2. Necessity and other justifications in general a. Necessity. Conduct which would otherwise be an offense is justifiable by reason of necessity to the extent permitted by law and as to which neither the code nor other statutory law defining the offense provides exceptions or defenses dealing with the specific situation involved and a legislative purpose to exclude the justification claimed does not otherwise plainly appear.
b. Other justifications in general. Conduct which would otherwise be an offense is justifiable by reason of any defense of justification provided by law for which neither the code nor other statutory law defining the offense provides exceptions or defenses dealing with the specific situation involved and a legislative purpose to exclude the justification claimed does not otherwise plainly appear.
L.1978, c. 95, s. 2C:3-2, eff. Sept. 1, 1979.
Receive free NJ Laws Email newsletter with current laws and cases
Telephone Consultation Program New Article of the Week
Meet with an experienced Attorney to handle your important legal needs.
Please call the office to schedule a confidential "in Office" consultation.
Attorneys are not permitted to provide legal advice by email.
Kenneth Vercammen's Law office represents individuals charged with criminal, drug offenses, and serious traffic violations throughout New Jersey. Our office helps people with traffic/ municipal court tickets including drivers charged with Driving While Intoxicated, Refusal and Driving While Suspended.
Kenneth Vercammen was the NJ State Bar Municipal Court Attorney of the Year and past president of the Middlesex County Municipal Prosecutor's Association.
Criminal and Motor vehicle violations can cost you. You will have to pay fines in court or receive points on your drivers license. An accumulation of too many points, or certain moving violations may require you to pay expensive surcharges to the N.J. DMV [Division of Motor Vehicles] or have your license suspended. Don't give up! The Law Office of Kenneth Vercammen can provide experienced attorney representation for criminal motor vehicle violations.
When your job or driver's license is in jeopardy or you are facing thousands of dollars in fines, DMV surcharges and car insurance increases, you need excellent legal representation. The least expensive attorney is not always the answer. Schedule an appointment if you need experienced legal representation in a traffic/municipal court matter.
Our website www.njlaws.com provides information on traffic offenses we can be retained to represent people. Our website also provides details on jail terms for traffic violations and car insurance eligibility points. Car insurance companies increase rates or drop customers based on moving violations.
Kenneth Vercammen's Law office represents individuals charged from criminal and serious traffic violations throughout New Jersey.
Affirmative defenses 2C:2-5. Defenses generally Conduct which would otherwise be an offense is excused or alleviated by reason of any defense now provided by law for which neither the code nor other statutory law defining the offense provides exceptions or defenses dealing with the specific situation involved and a legislative purpose to exclude the defense claimed does not otherwise plainly appear.
L.1978, c. 95, s. 2C:2-5, eff. Sept. 1, 1979.
2C:2-6. Liability for conduct of another; complicity a. A person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable, or both.
b. A person is legally accountable for the conduct of another person when:
(1) Acting with the kind of culpability that is sufficient for the commission of the offense, he causes an innocent or irresponsible person to engage in such conduct;
(2) He is made accountable for the conduct of such other person by the code or by the law defining the offense;
(3) He is an accomplice of such other person in the commission of an offense; or
(4) He is engaged in a conspiracy with such other person.
c. A person is an accomplice of another person in the commission of an offense if:
(1) With the purpose of promoting or facilitating the commission of the offense; he
(a) Solicits such other person to commit it;
(b) Aids or agrees or attempts to aid such other person in planning or committing it; or
(c) Having a legal duty to prevent the commission of the offense, fails to make proper effort so to do; or
(2) His conduct is expressly declared by law to establish his complicity.
d. A person who is legally incapable of committing a particular offense himself may be guilty thereof if it is committed by another person for whose conduct he is legally accountable, unless such liability is inconsistent with the purpose of the provision establishing his incapacity.
e. Unless otherwise provided by the code or by the law defining the offense, a person is not an accomplice in an offense committed by another person if:
(1) He is a victim of that offense;
(2) The offense is so defined that his conduct is inevitably incident to its commission; or
(3) He terminates his complicity under circumstances manifesting a complete and voluntary renunciation as defined in section 2C:5-1 d. prior to the commission of the offense. Termination by renunciation is an affirmative defense which the defendant must prove by a preponderance of evidence.
f. An accomplice may be convicted on proof of the commission of the offense and of his complicity therein, though the person claimed to have committed the offense has not been prosecuted or convicted or has been convicted of a different offense or degree of offense or has an immunity to prosecution or conviction or has been acquitted.
L.1978, c. 95, s. 2C:2-6, eff. Sept. 1, 1979.
2C:2-7. Liability of corporations and persons acting, or under a duty to act, in their behalf a. A corporation may be convicted of the commission of an offense if:
(1) The conduct constituting the offense is engaged in by an agent of the corporation while acting within the scope of his employment and in behalf of the corporation unless the offense is one defined by a statute which indicates a legislative purpose not to impose criminal liability on corporations. If the law governing the offense designates the agents for whose conduct the corporation is accountable or the circumstances under which it is accountable, such provisions shall apply;
(2) The offense consists of an omission to discharge a specific duty of affirmative performance imposed on corporations by law; or
(3) The conduct constituting the offense is engaged in, authorized, solicited, requested, commanded, or recklessly tolerated by the board of directors or by a high managerial agent acting within the scope of his employment and in behalf of the corporation.
b. As used in this section:
(1) "Corporation" does not include an entity organized as or by a governmental agency for the execution of a governmental program;
(2) "Agent" means any director, officer, servant, employee or other person authorized to act in behalf of the corporation;
(3) "High managerial agent" means an officer of a corporation or any other agent of a corporation having duties of such responsibility that his conduct may fairly be assumed to represent the policy of the corporation.
c. In any prosecution of a corporation for the commission of an offense included within the terms of subsection a. (1) of this section, other than an offense for which absolute liability has been imposed, it shall be a defense if the defendant proves by a preponderance of evidence that the high managerial agent having supervisory responsibility over the subject matter of the offense employed due diligence to prevent its commission. This paragraph shall not apply if it is plainly inconsistent with the legislative purpose in defining the particular offense.
d. Nothing in this section imposing liability upon a corporation shall be construed as limiting the liability for an offense of an individual by reason of his being an agent of the corporation.
L.1978, c. 95, s. 2C:2-7, eff. Sept. 1, 1979.
2C:2-8. Intoxication
a. Except as provided in subsection d. of this section, intoxication of the actor is not a defense unless it negatives an element of the offense.
b. When recklessness establishes an element of the offense, if the actor, due to self-induced intoxication, is unaware of a risk of which he would have been aware had he been sober, such unawareness is immaterial.
c. Intoxication does not, in itself, constitute mental disease within the meaning of chapter 4.
d. Intoxication which (1) is not self-induced or (2) is pathological is an affirmative defense if by reason of such intoxication the actor at the time of his conduct did not know the nature and quality of the act he was doing, or if he did know it, that he did not know what he was doing was wrong. Intoxication under this subsection must be proved by clear and convincing evidence.
e. Definitions. In this section unless a different meaning plainly is required:
(1) "Intoxication" means a disturbance of mental or physical capacities resulting from the introduction of substances into the body;
(2) "Self-induced intoxication" means intoxication caused by substances which the actor knowingly introduces into his body, the tendency of which to cause intoxication he knows or ought to know, unless he introduces them pursuant to medical advice or under such circumstances as would afford a defense to a charge of crime;
(3) "Pathological intoxication" means intoxication grossly excessive in degree, given the amount of the intoxicant, to which the actor does not know he is susceptible.
L.1978, c. 95, s. 2C:2-8, eff. Sept. 1, 1979. Amended by L.1983, c. 306, s. 1, eff. Aug. 26, 1983.
2C:2-9. Duress a. Subject to subsection b. of this section, it is an affirmative defense that the actor engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, which a person of reasonable firmness in his situation would have been unable to resist.
b. The defense provided by this section is unavailable if the actor recklessly placed himself in a situation in which it was probable that he would be subjected to duress. The defense is also unavailable if he was criminally negligent in placing himself in such a situation, whenever criminal negligence suffices to establish culpability for the offense charged. In a prosecution for murder, the defense is only available to reduce the degree of the crime to manslaughter.
c. It is not a defense that a woman acted on the command of her husband, unless she acted under such coercion as would establish a defense under this section. The presumption that a woman, acting in the presence of her husband, is coerced is abolished.
L.1978, c. 95, s. 2C:2-9, eff. Sept. 1, 1979.
2C:2-10. Consent a. In general. The consent of the victim to conduct charged to constitute an offense or to the result thereof is a defense if such consent negatives an element of the offense or precludes the infliction of the harm or evil sought to be prevented by the law defining the offense.
b. Consent to bodily harm. When conduct is charged to constitute an offense because it causes or threatens bodily harm, consent to such conduct or to the infliction of such harm is a defense if:
(1) The bodily harm consented to or threatened by the conduct consented to is not serious; or
(2) The conduct and the harm are reasonably foreseeable hazards of joint participation in a concerted activity of a kind not forbidden by law; or
(3) The consent establishes a justification for the conduct under chapter 3 of the code.
c. Ineffective consent. Unless otherwise provided by the code or by the law defining the offense, assent does not constitute consent if:
(1) It is given by a person who is legally incompetent to authorize the conduct charged to constitute the offense; or
(2) It is given by a person who by reason of youth, mental disease or defect or intoxication is manifestly unable or known by the actor to be unable to make a reasonable judgment as to the nature of harmfulness of the conduct charged to constitute an offense; or
(3) It is induced by force, duress or deception of a kind sought to be prevented by the law defining the offense.
L.1978, c. 95, s. 2C:2-10, eff. Sept. 1, 1979.
2C:2-11. De minimis infractions
The assignment judge may dismiss a prosecution if, having regard to the nature of the conduct charged to constitute an offense and the nature of the attendant circumstances, it finds that the defendant's conduct:
a. Was within a customary license or tolerance, neither expressly negated by the person whose interest was infringed nor inconsistent with the purpose of the law defining the offense;
b. Did not actually cause or threaten the harm or evil sought to be prevented by the law defining the offense or did so only to an extent too trivial to warrant the condemnation of conviction; or
c. Presents such other extenuations that it cannot reasonably be regarded as envisaged by the Legislature in forbidding the offense. The assignment judge shall not dismiss a prosecution under this section without giving the prosecutor notice and an opportunity to be heard. The prosecutor shall have a right to appeal any such dismissal.
L.1978, c. 95, s. 2C:2-11, eff. Sept. 1, 1979.
2C:2-12. Entrapment a. A public law enforcement official or a person engaged in cooperation with such an official or one acting as an agent of a public law enforcement official perpetrates an entrapment if for the purpose of obtaining evidence of the commission of an offense, he induces or encourages and, as a direct result, causes another person to engage in conduct constituting such offense by either:
(1) Making knowingly false representations designed to induce the belief that such conduct is not prohibited; or
(2) Employing methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it.
b. Except as provided in subsection c. of this section, a person prosecuted for an offense shall be acquitted if he proves by a preponderance of evidence that his conduct occurred in response to an entrapment. The issue of entrapment shall be tried by the trier of fact.
c. The defense afforded by this section is unavailable when causing or threatening bodily injury is an element of the offense charged and the prosecution is based on conduct causing or threatening such injury to a person other than the person perpetrating the entrapment.
L.1978, c. 95, s. 2C:2-12, eff. Sept. 1, 1979. Amended by L.1979, c. 178, s. 9, eff. Sept. 1, 1979.
2C:3-1. Justification an affirmative defense; civil remedies unaffected a. In any prosecution based on conduct which is justifiable under this chapter, justification is an affirmative defense.
b. The fact that conduct is justifiable under this chapter does not abolish or impair any remedy for such conduct which is available in any civil action.
L.1978, c. 95, s. 2C:3-1, eff. Sept. 1, 1979.
2C:3-2. Necessity and other justifications in general a. Necessity. Conduct which would otherwise be an offense is justifiable by reason of necessity to the extent permitted by law and as to which neither the code nor other statutory law defining the offense provides exceptions or defenses dealing with the specific situation involved and a legislative purpose to exclude the justification claimed does not otherwise plainly appear.
b. Other justifications in general. Conduct which would otherwise be an offense is justifiable by reason of any defense of justification provided by law for which neither the code nor other statutory law defining the offense provides exceptions or defenses dealing with the specific situation involved and a legislative purpose to exclude the justification claimed does not otherwise plainly appear.
L.1978, c. 95, s. 2C:3-2, eff. Sept. 1, 1979.
Receive free NJ Laws Email newsletter with current laws and cases
Telephone Consultation Program New Article of the Week
Meet with an experienced Attorney to handle your important legal needs.
Please call the office to schedule a confidential "in Office" consultation.
Attorneys are not permitted to provide legal advice by email.
Kenneth Vercammen's Law office represents individuals charged with criminal, drug offenses, and serious traffic violations throughout New Jersey. Our office helps people with traffic/ municipal court tickets including drivers charged with Driving While Intoxicated, Refusal and Driving While Suspended.
Kenneth Vercammen was the NJ State Bar Municipal Court Attorney of the Year and past president of the Middlesex County Municipal Prosecutor's Association.
Criminal and Motor vehicle violations can cost you. You will have to pay fines in court or receive points on your drivers license. An accumulation of too many points, or certain moving violations may require you to pay expensive surcharges to the N.J. DMV [Division of Motor Vehicles] or have your license suspended. Don't give up! The Law Office of Kenneth Vercammen can provide experienced attorney representation for criminal motor vehicle violations.
When your job or driver's license is in jeopardy or you are facing thousands of dollars in fines, DMV surcharges and car insurance increases, you need excellent legal representation. The least expensive attorney is not always the answer. Schedule an appointment if you need experienced legal representation in a traffic/municipal court matter.
Our website www.njlaws.com provides information on traffic offenses we can be retained to represent people. Our website also provides details on jail terms for traffic violations and car insurance eligibility points. Car insurance companies increase rates or drop customers based on moving violations.
AAA Attorney Fee Reimbursement for Members
Attorney's Fees Reimbursement Service when you hire Ken Vercammen, Esq.
In order to assure a fair hearing for members accused of certain traffic violations, the AAA Club offers an attorney's fees reimbursement service. The Club does not in any way practice law nor does it establish attorney's fees, since such fees will be dependent entirely upon the circumstances surrounding the particular case. The attorney must be chosen by the member and the attorney's fees must be paid in full by the member. The paid receipt should then be submitted to the Club for consideration of reimbursement based on the reimbursement schedule contained herein.
The attorney's fees reimbursement service is strictly for the purpose of helping defray the costs incurred when a member retains the services of an attorney to assist in the defense of charges of common moving violations resulting from the operation of a motor vehicle where the member feels unjustly accused, and desires a fair and impartial trial.
Schedule of Reimbursable Attorney's Fees (This schedule provides the maximum amount to be reimbursed per listed violation for regular AAA members, as well as for AAA members who have the additional benefit of AAA PLUS, provided all conditions for eligibility have been satisfied.)
Regular PLUS Members Members For defense of Reckless Driving or Endangerment, not exceeding 35.00 400.00
If appealed not more than additional 35.00 200.00
For defense of alleged moving violations of traffic laws, not exceeding 25.00 100.00
For lawyer's representation at hearings on suspension or revocation of license or registration by the Dept. of Motor Vehicles, up to 0 100.00
AAA member Kenneth Vercammen, Esq. is available for representation. To schedule an confidential consultation, please contact The Law Office of KENNETH A. VERCAMMEN, (732) 906-2180.
Receive free NJ Laws Email newsletter with current laws and cases
Telephone Consultation Program New Article of the Week
Meet with an experienced Attorney to handle your important legal needs.
Please call the office to schedule a confidential "in Office" consultation.
Attorneys are not permitted to provide legal advice by email.
In order to assure a fair hearing for members accused of certain traffic violations, the AAA Club offers an attorney's fees reimbursement service. The Club does not in any way practice law nor does it establish attorney's fees, since such fees will be dependent entirely upon the circumstances surrounding the particular case. The attorney must be chosen by the member and the attorney's fees must be paid in full by the member. The paid receipt should then be submitted to the Club for consideration of reimbursement based on the reimbursement schedule contained herein.
The attorney's fees reimbursement service is strictly for the purpose of helping defray the costs incurred when a member retains the services of an attorney to assist in the defense of charges of common moving violations resulting from the operation of a motor vehicle where the member feels unjustly accused, and desires a fair and impartial trial.
Schedule of Reimbursable Attorney's Fees (This schedule provides the maximum amount to be reimbursed per listed violation for regular AAA members, as well as for AAA members who have the additional benefit of AAA PLUS, provided all conditions for eligibility have been satisfied.)
Regular PLUS Members Members For defense of Reckless Driving or Endangerment, not exceeding 35.00 400.00
If appealed not more than additional 35.00 200.00
For defense of alleged moving violations of traffic laws, not exceeding 25.00 100.00
For lawyer's representation at hearings on suspension or revocation of license or registration by the Dept. of Motor Vehicles, up to 0 100.00
AAA member Kenneth Vercammen, Esq. is available for representation. To schedule an confidential consultation, please contact The Law Office of KENNETH A. VERCAMMEN, (732) 906-2180.
Receive free NJ Laws Email newsletter with current laws and cases
Telephone Consultation Program New Article of the Week
Meet with an experienced Attorney to handle your important legal needs.
Please call the office to schedule a confidential "in Office" consultation.
Attorneys are not permitted to provide legal advice by email.
Subscription Form for NJ Municipal Court Law Review
Subscription form NJ Municipal Court Law Review
Kenneth Vercammen began publishing the NJ Municipal Court Law Review for Municipal Court Judges and police chiefs in 1993 as the Cranbury Municipal Court Prosecutor. Based on the overwhelming response, we made the NJ Municipal Court Law Review available to all municipalities for an annual subscription of only $20.00 per year. Prosecutors, police, Attorneys, Courts, Judges, municipalities, mayors, law enforcement, and individuals involved in the Municipal Courts and Criminal Courts in New Jersey should read this newsletter.
To receive this quarterly newsletter reporting how changes in New Jersey law or court decisions could affect the prosecution or handling of Municipal Court matters, please subscribe today using this subscription form, or sending a municipal voucher.
You will receive quarterly updates on selected revised motor vehicle laws and articles on Municipal Court practice. Already over 400 New Jersey police departments, prosecutors, and towns have subscribed. Please give me a call if you have any questions. I look forward to hearing from you.
Name: ______________________________________ (or staple business card here) Address: ______________________________________
______________________________________
Return to: Kenneth A. Vercammen, Esq., ________________ Editor- NJ Municipal Court Law Review 2053 Woodbridge Ave., Edison NJ 08817 For information call: (732) 572-0500 We also have a free email newsletter on wills, probate & elder law To subscribe for the email newsletter, mail or fax us your email address
Receive free NJ Laws Email newsletter with current laws and cases
Telephone Consultation Program
New Article of the Week
Meet with an experienced Attorney to handle your important legal needs.
Please call the office to schedule a confidential "in Office" consultation.
Attorneys are not permitted to provide legal advice by email.
Kenneth Vercammen's Law office represents individuals charged with criminal, drug offenses, and serious traffic violations throughout New Jersey. Our office helps people with traffic/ municipal court tickets including drivers charged with Driving While Intoxicated, Refusal and Driving While Suspended.
Kenneth Vercammen was the NJ State Bar Municipal Court Attorney of the Year and past president of the Middlesex County Municipal Prosecutor's Association.
Criminal and Motor vehicle violations can cost you. You will have to pay fines in court or receive points on your drivers license. An accumulation of too many points, or certain moving violations may require you to pay expensive surcharges to the N.J. DMV [Division of Motor Vehicles] or have your license suspended. Don't give up! The Law Office of Kenneth Vercammen can provide experienced attorney representation for criminal motor vehicle violations.
When your job or driver's license is in jeopardy or you are facing thousands of dollars in fines, DMV surcharges and car insurance increases, you need excellent legal representation. The least expensive attorney is not always the answer. Schedule an appointment if you need experienced legal representation in a traffic/municipal court matter.
Our website www.njlaws.com provides information on traffic offenses we can be retained to represent people. Our website also provides details on jail terms for traffic violations and car insurance eligibility points. Car insurance companies increase rates or drop customers based on moving violations.
Kenneth Vercammen began publishing the NJ Municipal Court Law Review for Municipal Court Judges and police chiefs in 1993 as the Cranbury Municipal Court Prosecutor. Based on the overwhelming response, we made the NJ Municipal Court Law Review available to all municipalities for an annual subscription of only $20.00 per year. Prosecutors, police, Attorneys, Courts, Judges, municipalities, mayors, law enforcement, and individuals involved in the Municipal Courts and Criminal Courts in New Jersey should read this newsletter.
To receive this quarterly newsletter reporting how changes in New Jersey law or court decisions could affect the prosecution or handling of Municipal Court matters, please subscribe today using this subscription form, or sending a municipal voucher.
You will receive quarterly updates on selected revised motor vehicle laws and articles on Municipal Court practice. Already over 400 New Jersey police departments, prosecutors, and towns have subscribed. Please give me a call if you have any questions. I look forward to hearing from you.
Name: ______________________________________ (or staple business card here) Address: ______________________________________
______________________________________
Return to: Kenneth A. Vercammen, Esq., ________________ Editor- NJ Municipal Court Law Review 2053 Woodbridge Ave., Edison NJ 08817 For information call: (732) 572-0500 We also have a free email newsletter on wills, probate & elder law To subscribe for the email newsletter, mail or fax us your email address
Receive free NJ Laws Email newsletter with current laws and cases
Telephone Consultation Program
New Article of the Week
Meet with an experienced Attorney to handle your important legal needs.
Please call the office to schedule a confidential "in Office" consultation.
Attorneys are not permitted to provide legal advice by email.
Kenneth Vercammen's Law office represents individuals charged with criminal, drug offenses, and serious traffic violations throughout New Jersey. Our office helps people with traffic/ municipal court tickets including drivers charged with Driving While Intoxicated, Refusal and Driving While Suspended.
Kenneth Vercammen was the NJ State Bar Municipal Court Attorney of the Year and past president of the Middlesex County Municipal Prosecutor's Association.
Criminal and Motor vehicle violations can cost you. You will have to pay fines in court or receive points on your drivers license. An accumulation of too many points, or certain moving violations may require you to pay expensive surcharges to the N.J. DMV [Division of Motor Vehicles] or have your license suspended. Don't give up! The Law Office of Kenneth Vercammen can provide experienced attorney representation for criminal motor vehicle violations.
When your job or driver's license is in jeopardy or you are facing thousands of dollars in fines, DMV surcharges and car insurance increases, you need excellent legal representation. The least expensive attorney is not always the answer. Schedule an appointment if you need experienced legal representation in a traffic/municipal court matter.
Our website www.njlaws.com provides information on traffic offenses we can be retained to represent people. Our website also provides details on jail terms for traffic violations and car insurance eligibility points. Car insurance companies increase rates or drop customers based on moving violations.
Municipal Court and Criminal Interview
PLEASE FILL OUT BOTH PAGES OF OUR CONFIDENTIAL INTERVIEW FORM AND RETURN TO
FRONT DESK
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 WOODBRIDGE AVENUE
EDISON, NJ 08817
732-572-0500
PLEASE PRINT
NAME ____________________________________________________
ADDRESS _________________________________________________
CITY _______________________ STATE ____ ZIP ______________
CELL #(_____)_________________ PHONE-DAY(____)________________
NIGHT (______)_________________
TODAY'S DATE ____/_____/_____ E-MAIL ________________________
Referred By: __________________________________
If referred by a person, is this a client or attorney?
CHARGES/TICKETS ISSUED [provide tickets, hearing notice and other important
papers to front desk to be copied]
1. ____________________________________________________
2. ____________________________________________________
3. ____________________________________________________
4. ____________________________________________________
IMPORTANT INFORMATION
Date of Offense: __________________ Time: _____ (A.M./P.M.) Your Age _____
Town: ___________________________ (street/location)?____________________
What Happened: ________________________________________________
_____________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
________________________________________________________________Write
additional details on the back of this page. YOU MUST FILL OUT BOTH
PAGES PRIOR TO SEEING THE ATTORNEY. Kenneth Vercammen, Esq. Confidential
interview form page 2
Other Persons Arrested or Witnesses:
______________________ ____________________________
co-defendant/ Witness Name Their Address Phone No.
______________ ______________________________________
Name Address Phone No.
What statements did you give to the police? ________________________
____________________________________________________________________________
__________________________________________________
Occupation: _____________ Employer: _______________ Town: ________
Do you need your drivers license for work? ____ Distance driven to work:
____
Prior criminal convictions or arrests (include description of each charge,
date of conviction, and place of conviction. -If none, write none):
_______________
____________________________________________________________________________
____________________________________________________________________________
_____________________________________ Prior motor vehicle convictions, town
and year(ex: drunk driving, no insurance, driving while suspended, etc. -If
none, write none):______________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
_______________________
Prior Traffic ticket downgrades to no point tickets since 1999 [39:4-97.2]:
1. Town _______________________ Year ___________ [if none, write none]
2. Town _______________________ Year ___________
[Please note the DMV/MVC only permits 2 "no point" downgrades in 5 years.]
What questions do you have/ how can we help you and anything else important:
________________________________________________
_______________________________________________________________
_______________________________________________________________
All new clients are entitled to receive our Free Email Newsletter
featuring updates in Traffic Law, Criminal and Personal Injury. Please help
yourself to all brochures in the reception area. If you have a business
card, please attach it to the clipboard. All paid clients receive a T-shirt
upon request. This page must be filled out before meeting with the
attorney. Thank you. 1. Legal Services To Be Provided- Please
read!
We will review and research necessary statutes and caselaw, speak with
the prosecutor, prepare defenses and determine mitigating factors. We agree
to provide conscientious, competent and diligent services and at all times
will seek to achieve solutions which are just and reasonable for you.
1. Office consultation with client
2. Preparation of statement to provide legal services [ retainer
agreement setting forth fees and work to be performed;
3. Offer sound legal advice to client;
4. Preparation of letter of representation to Municipal Court after fee
paid;
5. Preparation of letter of representation to Municipal Court Prosecutor;
6. Review documents supplied by client and court;
7. Copies of all correspondence to Court and Prosecutor to client;
8. Opening of file and client may have free client case folder, Municipal
Court brochure, DMV points brochure, and Website brochure;
9. Review of necessary statutes and case law;
10. Follow up with Municipal Prosecutor for discovery if suspension or
jail is likely;
11. Prepare defense and mitigating factors;
12. Miscellaneous correspondence, drafting of brief/ pleadings if needed;
13. Review Court hearing notice and send letter to client to remind them
of hearing
14. Travel to Municipal Court;
15. Representation in Municipal Court.
16. Preparation of End of Case Letter and client questionnaire.
17. Free Brochures provided on other legal topics such as Personal
Injury, Worker's Comp, Wills, Probate and other matter we help clients
18. Free subscription to monthly e-mail newsletter. Provide your email
address.
19. Answer specific questions after the case is over
20. Invitation to client socials.
21. Send the file to storage for seven years as free client service.
22. Free Magnets, Keychains, Pens for new clients, - Please ask
2. Legal Fees.
Fees must be paid by VISA, Master Card, American Express, check, money
order or cash. Make checks payable to Kenneth Vercammen Law Office today.
Fees are to be paid at initial consultation (today). Fees must be paid in
full prior to a Letter of Representation being sent to the Court. Neither
this office nor other area attorneys accept payment plans if the fees are
less than $2,500. Fees are not reduced and not negotiable. Under the NJ
Rules of Professional Conduct and Court Rules, we cannot send a letter of
representation to the court until the Retainer is paid in full.
What you should do: In Traffic matters we recommend you contact DMV, now
Motor Vehicle Commission, and obtain a driver's license abstract.
888-486-3339 or 609-292-6500. This will help you when we go to court.
[Mun Ct Questionnaire non cl G3 rev 9/1604]
Write your notes on the back of this paper during your interview. Use the pen we gave you.
Receive free NJ Laws Email newsletter with current laws and cases
Telephone Consultation Program
New Article of the Week
Meet with an experienced Attorney to handle your important legal needs.
Please call the office to schedule a confidential "in Office" consultation.
Attorneys are not permitted to provide legal advice by email.
Kenneth Vercammen's Law office represents individuals charged with criminal, drug offenses, and serious traffic violations throughout New Jersey. Our office helps people with traffic/ municipal court tickets including drivers charged with Driving While Intoxicated, Refusal and Driving While Suspended.
Kenneth Vercammen was the NJ State Bar Municipal Court Attorney of the Year and past president of the Middlesex County Municipal Prosecutor's Association.
Criminal and Motor vehicle violations can cost you. You will have to pay fines in court or receive points on your drivers license. An accumulation of too many points, or certain moving violations may require you to pay expensive surcharges to the N.J. DMV [Division of Motor Vehicles] or have your license suspended. Don't give up! The Law Office of Kenneth Vercammen can provide experienced attorney representation for criminal motor vehicle violations.
When your job or driver's license is in jeopardy or you are facing thousands of dollars in fines, DMV surcharges and car insurance increases, you need excellent legal representation. The least expensive attorney is not always the answer. Schedule an appointment if you need experienced legal representation in a traffic/municipal court matter.
Our website www.njlaws.com provides information on traffic offenses we can be retained to represent people. Our website also provides details on jail terms for traffic violations and car insurance eligibility points. Car insurance companies increase rates or drop customers based on moving violations.
.
FRONT DESK
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 WOODBRIDGE AVENUE
EDISON, NJ 08817
732-572-0500
PLEASE PRINT
NAME ____________________________________________________
ADDRESS _________________________________________________
CITY _______________________ STATE ____ ZIP ______________
CELL #(_____)_________________ PHONE-DAY(____)________________
NIGHT (______)_________________
TODAY'S DATE ____/_____/_____ E-MAIL ________________________
Referred By: __________________________________
If referred by a person, is this a client or attorney?
CHARGES/TICKETS ISSUED [provide tickets, hearing notice and other important
papers to front desk to be copied]
1. ____________________________________________________
2. ____________________________________________________
3. ____________________________________________________
4. ____________________________________________________
IMPORTANT INFORMATION
Date of Offense: __________________ Time: _____ (A.M./P.M.) Your Age _____
Town: ___________________________ (street/location)?____________________
What Happened: ________________________________________________
_____________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
________________________________________________________________Write
additional details on the back of this page. YOU MUST FILL OUT BOTH
PAGES PRIOR TO SEEING THE ATTORNEY. Kenneth Vercammen, Esq. Confidential
interview form page 2
Other Persons Arrested or Witnesses:
______________________ ____________________________
co-defendant/ Witness Name Their Address Phone No.
______________ ______________________________________
Name Address Phone No.
What statements did you give to the police? ________________________
____________________________________________________________________________
__________________________________________________
Occupation: _____________ Employer: _______________ Town: ________
Do you need your drivers license for work? ____ Distance driven to work:
____
Prior criminal convictions or arrests (include description of each charge,
date of conviction, and place of conviction. -If none, write none):
_______________
____________________________________________________________________________
____________________________________________________________________________
_____________________________________ Prior motor vehicle convictions, town
and year(ex: drunk driving, no insurance, driving while suspended, etc. -If
none, write none):______________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
_______________________
Prior Traffic ticket downgrades to no point tickets since 1999 [39:4-97.2]:
1. Town _______________________ Year ___________ [if none, write none]
2. Town _______________________ Year ___________
[Please note the DMV/MVC only permits 2 "no point" downgrades in 5 years.]
What questions do you have/ how can we help you and anything else important:
________________________________________________
_______________________________________________________________
_______________________________________________________________
All new clients are entitled to receive our Free Email Newsletter
featuring updates in Traffic Law, Criminal and Personal Injury. Please help
yourself to all brochures in the reception area. If you have a business
card, please attach it to the clipboard. All paid clients receive a T-shirt
upon request. This page must be filled out before meeting with the
attorney. Thank you. 1. Legal Services To Be Provided- Please
read!
We will review and research necessary statutes and caselaw, speak with
the prosecutor, prepare defenses and determine mitigating factors. We agree
to provide conscientious, competent and diligent services and at all times
will seek to achieve solutions which are just and reasonable for you.
1. Office consultation with client
2. Preparation of statement to provide legal services [ retainer
agreement setting forth fees and work to be performed;
3. Offer sound legal advice to client;
4. Preparation of letter of representation to Municipal Court after fee
paid;
5. Preparation of letter of representation to Municipal Court Prosecutor;
6. Review documents supplied by client and court;
7. Copies of all correspondence to Court and Prosecutor to client;
8. Opening of file and client may have free client case folder, Municipal
Court brochure, DMV points brochure, and Website brochure;
9. Review of necessary statutes and case law;
10. Follow up with Municipal Prosecutor for discovery if suspension or
jail is likely;
11. Prepare defense and mitigating factors;
12. Miscellaneous correspondence, drafting of brief/ pleadings if needed;
13. Review Court hearing notice and send letter to client to remind them
of hearing
14. Travel to Municipal Court;
15. Representation in Municipal Court.
16. Preparation of End of Case Letter and client questionnaire.
17. Free Brochures provided on other legal topics such as Personal
Injury, Worker's Comp, Wills, Probate and other matter we help clients
18. Free subscription to monthly e-mail newsletter. Provide your email
address.
19. Answer specific questions after the case is over
20. Invitation to client socials.
21. Send the file to storage for seven years as free client service.
22. Free Magnets, Keychains, Pens for new clients, - Please ask
2. Legal Fees.
Fees must be paid by VISA, Master Card, American Express, check, money
order or cash. Make checks payable to Kenneth Vercammen Law Office today.
Fees are to be paid at initial consultation (today). Fees must be paid in
full prior to a Letter of Representation being sent to the Court. Neither
this office nor other area attorneys accept payment plans if the fees are
less than $2,500. Fees are not reduced and not negotiable. Under the NJ
Rules of Professional Conduct and Court Rules, we cannot send a letter of
representation to the court until the Retainer is paid in full.
What you should do: In Traffic matters we recommend you contact DMV, now
Motor Vehicle Commission, and obtain a driver's license abstract.
888-486-3339 or 609-292-6500. This will help you when we go to court.
[Mun Ct Questionnaire non cl G3 rev 9/1604]
Write your notes on the back of this paper during your interview. Use the pen we gave you.
Receive free NJ Laws Email newsletter with current laws and cases
Telephone Consultation Program
New Article of the Week
Meet with an experienced Attorney to handle your important legal needs.
Please call the office to schedule a confidential "in Office" consultation.
Attorneys are not permitted to provide legal advice by email.
Kenneth Vercammen's Law office represents individuals charged with criminal, drug offenses, and serious traffic violations throughout New Jersey. Our office helps people with traffic/ municipal court tickets including drivers charged with Driving While Intoxicated, Refusal and Driving While Suspended.
Kenneth Vercammen was the NJ State Bar Municipal Court Attorney of the Year and past president of the Middlesex County Municipal Prosecutor's Association.
Criminal and Motor vehicle violations can cost you. You will have to pay fines in court or receive points on your drivers license. An accumulation of too many points, or certain moving violations may require you to pay expensive surcharges to the N.J. DMV [Division of Motor Vehicles] or have your license suspended. Don't give up! The Law Office of Kenneth Vercammen can provide experienced attorney representation for criminal motor vehicle violations.
When your job or driver's license is in jeopardy or you are facing thousands of dollars in fines, DMV surcharges and car insurance increases, you need excellent legal representation. The least expensive attorney is not always the answer. Schedule an appointment if you need experienced legal representation in a traffic/municipal court matter.
Our website www.njlaws.com provides information on traffic offenses we can be retained to represent people. Our website also provides details on jail terms for traffic violations and car insurance eligibility points. Car insurance companies increase rates or drop customers based on moving violations.
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Domestic Violence in New Jersey
Domestic Violence in New Jersey
New Jersey domestic violence laws are very strict. If there any signs of physical injuries the police must arrest the abuser. Even without independent witnesses and no physical injuries, police may arrest the abuser. Domestic Violence is a crime under the law, and the police must respond to the calls of victims. The police are required to give the victim information about their rights and to help them. Among other things, police must write up a report. For example, O.J. Simpson would not have gotten away with abuse in New Jersey. Police are automatically required to arrest an abuser if they see any evidence of abuse or assault. Even during the evening your town Municipal Court or Superior Court can issue a civil restraining order which is a legally enforceable document. The temporary restraining order will prohibit the defendant/abuser from harassing you or entering your residence. Unlike a criminal case where a person is provided with lengthy due process, and if guilty receives probation and a monetary fine, a domestic violence hearing allows judges to issue far reaching orders. A domestic violence hearing is usually held within only ten (10) days of the filing of an ex parte complaint and temporary restraining order. After a hearing , NJSA 2C:25-29 (b) allows the Chancery Division, Family Part Judge to grant substantial relief to the complainant. Among the relief the Court may give is: An order restraining the defendant from subjecting the victim to domestic violence, as defined in this act. An order granting exclusive possession to the plaintiff of the residence or household regardless of whether the residence or household is jointly or solely owned by the parties or jointly or solely leased by the parties... An order providing for visitation...[ meaning the complainant obtains custody] An order requiring the defendant to pay to the victim monetary compensation for losses suffered as a direct result of the act of domestic violence... An order restraining the defendant from entering the residence, property, school, or place of employment of the victim or of other family or household members of the victim... An order restraining the defendant from making any communication likely to cause annoyance or alarm... An order requiring that the defendant make or continue to make rent or mortgage payments on the residence occupied by the victim if the defendant is found to have a duty to support the victim or other dependent household members... An order granting either party temporary possession of specified personal property, such as an automobile, checkbook, documentation of health insurance, any identification documents, a key, and other personal effects. An order awarding emergent monetary relief to the victim and other dependents, if any. An ongoing obligation of support shall be determined at a later date pursuant to applicable law. An Order awarding temporary custody of a minor child. The court shall presume that the best interests of the child shall be served by an award of custody to the non- abusive parent. An Order requiring that a law enforcement officer accompany either party to the residence to supervise the removal of personal belongings. An Order permitting the victim and the defendant to occupy the same premises only if the plaintiff requests such an order. An Order granting any other appropriate relief for the plaintiff and minor children An Order that the defendant report to the intake office of the Family Part for monitoring An Order prohibiting the defendant from possessing any firearm or weapon Recent caselaw protects victims. In Pepe v Pepe, 258 N.J. Super. 157 (Chan. Div. 1992) held that the confidentiality provision of record keeping under the Domestic Violence act applies to the records kept on file with the Clerk of the Superior Court. The court held that in determining whether or not a statutory imposed confidential record should be made public, the court must consider whether the release of the documents will be harmful to the victim, whether adverse publicity will be a factor and whether access to court records will discourage the victim from coming forward. Despite the substantial financial burden and life restrictions (often referred to as penalties), the burden of proof in a DOMESTIC VIOLENCE hearing is only a preponderance of evidence. Hopefully, parties will put best interests of children ahead of short term animosity. Financial limitations often limit the family ability to become involved in lengthy divorce and custody battles. A DOMESTIC VIOLENCE complaint can be withdrawn. For additional information, speak with an attorney experienced in handling Domestic Violence matters. Domestic violence statute revised:
2C:25-29.1 Civil penalty for certain domestic violence offenders.
1.In addition to any other disposition, any person found by the court in a final hearing pursuant to section 13 of P.L.1991, c.261 (C.2C:25-29) to have committed an act of domestic violence shall be ordered by the court to pay a civil penalty of at least $50, but not to exceed $500. In imposing this civil penalty, the court shall take into consideration the nature and degree of injury suffered by the victim. The court may waive the penalty in cases of extreme financial hardship.
L.2001,c.195,s.1.
2C:25-29.2 Collection, distribution of civil penalties collected. 2.All civil penalties imposed pursuant to section 1 of P.L.2001, c.195 (C.2C:25-29.1) shall be collected as provided by the Rules of Court. All moneys collected shall be forwarded to the Domestic Violence Victims' Fund established pursuant to section 3 of P.L.2001, c.195 (C.30:14-15).
L.2001,c.195,s.2.
2C:25-29.3 Rules of Court.
4.The Supreme Court may promulgate Rules of Court to effectuate the purposes of this act.
L.2001,c.195,s.4.
2C:25-29.1 Civil penalty for certain domestic violence offenders.
1.In addition to any other disposition, any person found by the court in a final hearing pursuant to section 13 of P.L.1991, c.261 (C.2C:25-29) to have committed an act of domestic violence shall be ordered by the court to pay a civil penalty of at least $50, but not to exceed $500. In imposing this civil penalty, the court shall take into consideration the nature and degree of injury suffered by the victim. The court may waive the penalty in cases of extreme financial hardship.
L.2001,c.195,s.1.
2C:25-29.2 Collection, distribution of civil penalties collected. 2.All civil penalties imposed pursuant to section 1 of P.L.2001, c.195 (C.2C:25-29.1) shall be collected as provided by the Rules of Court. All moneys collected shall be forwarded to the Domestic Violence Victims' Fund established pursuant to section 3 of P.L.2001, c.195 (C.30:14-15).
L.2001,c.195,s.2.
2C:25-30. Violations, penalties 14. Except as provided below, a violation by the defendant of an order issued pursuant to this act shall constitute an offense under subsection b. of N.J.S.2C:29-9 and each order shall so state. All contempt proceedings conducted pursuant to N.J.S.2C:29-9 involving domestic violence orders, other than those constituting indictable offenses, shall be heard by the Family Part of the Chancery Division of the Superior Court. All contempt proceedings brought pursuant to P.L.1991, c.261 (C.2C:25-17 et seq.) shall be subject to any rules or guidelines established by the Supreme Court to guarantee the prompt disposition of criminal matters. Additionally, and notwithstanding the term of imprisonment provided in N.J.S.2C:43-8, any person convicted of a second or subsequent nonindictable domestic violence contempt offense shall serve a minimum term of not less than 30 days. Orders entered pursuant to paragraphs (3), (4), (5), (8) and (9) of subsection b. of section 13 of this act shall be excluded from enforcement under subsection b. of N.J.S.2C:29-9; however, violations of these orders may be enforced in a civil or criminal action initiated by the plaintiff or by the court, on its own motion, pursuant to applicable court rules.
L.1991,c.261,s.14; amended 1994,c.93,s.3; 1994,c.94,s.6.
2C:25-31 Contempt, law enforcement procedures.
15.Where a law enforcement officer finds that there is probable cause that a defendant has committed contempt of an order entered pursuant to the provisions of P.L.1981, c.426 (C.2C:25-1 et seq.) or P.L.1991, c.261 (C.2C:25-17 et seq.), the defendant shall be arrested and taken into custody by a law enforcement officer. The law enforcement officer shall follow these procedures:
The law enforcement officer shall transport the defendant to the police station or such other place as the law enforcement officer shall determine is proper. The law enforcement officer shall:
a.Conduct a search of the domestic violence central registry and sign a complaint concerning the incident which gave rise to the contempt charge;
b.Telephone or communicate in person or by facsimile with the appropriate judge assigned pursuant to this act and request bail be set on the contempt charge;
c.If the defendant is unable to meet the bail set, take the necessary steps to insure that the defendant shall be incarcerated at police headquarters or at the county jail; and
d.During regular court hours, the defendant shall have bail set by a Superior Court judge that day. On weekends, holidays and other times when the court is closed, the officer shall arrange to have the clerk of the Family Part notified on the next working day of the new complaint, the amount of bail, the defendant's whereabouts and all other necessary details. In addition, if a municipal court judge set the bail, the arresting officer shall notify the clerk of that municipal court of this information.
L.1991,c.261,s.15; amended 1994, c.94, s.7; 1999, c.421, s.5. 2C:25-32. Alleged contempt, complainant's procedure 16. Where a person alleges that a defendant has committed contempt of an order entered pursuant to the provisions of P.L.1981, c.426 (C.2C:25-1 et seq.) or P.L.1991, c.261, but where a law enforcement officer has found that there is not probable cause sufficient to arrest the defendant, the law enforcement officer shall advise the complainant of the procedure for completing and signing a criminal complaint alleging a violation of N.J.S.2C:29-9. During regular court hours, the assistance of the clerk of the Family Part of the Chancery Division of the Superior Court shall be made available to such complainants. Nothing in this section shall be construed to prevent the court from granting any other emergency relief it deems necessary.
L.1991,c.261,s.16.
2C:25-33 Records of applications for relief; reports; confidentiality; forms.
17. a. The Administrative Office of the Courts shall, with the assistance of the Attorney General and the county prosecutors, maintain a uniform record of all applications for relief pursuant to sections 9, 10, 11, 12, and 13 of P.L.1991, c.261 (C.2C:25-25, C.2C:25-26, C.2C:25-27, C.2C:25-28, and C.2C:25-29). The record shall include the following information:
(1)The number of criminal and civil complaints filed in all municipal courts and the Superior Court;
(2)The sex of the parties;
(3)The relationship of the parties;
(4)The relief sought or the offense charged, or both;
(5)The nature of the relief granted or penalty imposed, or both, including, but not limited to, the following:
(a)custody;
(b)child support;
(c)the specific restraints ordered;
(d)any requirements or conditions imposed pursuant to paragraphs (1) through (18) of subsection b. of section 13 of P.L.1991, c.261 (C.2C:25-29), including but not limited to professional counseling or psychiatric evaluations;
(6)The effective date of each order issued; and
(7)In the case of a civil action in which no permanent restraints are entered, or in the case of a criminal matter that does not proceed to trial, the reason or reasons for the disposition.
It shall be the duty of the Director of the Administrative Office of the Courts to compile and report annually to the Governor, the Legislature and the Advisory Council on Domestic Violence on the data tabulated from the records of these orders.
All records maintained pursuant to this act shall be confidential and shall not be made available to any individual or institution except as otherwise provided by law.
b.In addition to the provisions of subsection a. of this section, the Administrative Office of the Courts shall, with the assistance of the Attorney General and the county prosecutors, create and maintain uniform forms to record sentencing, bail conditions and dismissals. The forms shall be used by the Superior Court and by every municipal court to record any order in a case brought pursuant to this act. Such recording shall include but not be limited to, the specific restraints ordered, any requirements or conditions imposed on the defendant, and any conditions of bail.
L.1991,c.261,s.17; amended 1994, c.94, s.8; 1999, c.119, s.1; 1999, c.421, s.6.
2C:25-34 Domestic violence restraining orders, central registry.
1.The Administrative Office of the Courts shall establish and maintain a central registry of all persons who have had domestic violence restraining orders entered against them, all persons who have been charged with a crime or offense involving domestic violence, and all persons who have been charged with a violation of a court order involving domestic violence. All records made pursuant to this section shall be kept confidential and shall be released only to:
a.A public agency authorized to investigate a report of domestic violence;
b.A police or other law enforcement agency investigating a report of domestic violence, or conducting a background investigation involving a person's application for a firearm permit or employment as a police or law enforcement officer or for any other purpose authorized by law or the Supreme Court of the State of New Jersey; or
c.A court, upon its finding that access to such records may be necessary for determination of an issue before the court.
Any individual, agency or court which receives from the Administrative Office of the Courts the records referred to in this section shall keep such records and reports, or parts thereof, confidential and shall not disseminate or disclose such records and reports, or parts thereof; provided that nothing in this section shall prohibit a receiving individual, agency or court from disclosing records and reports, or parts thereof, in a manner consistent with and in furtherance of the purpose for which the records and reports or parts thereof were received.
Any individual who disseminates or discloses a record or report, or parts thereof, of the central registry, for a purpose other than investigating a report of domestic violence, conducting a background investigation involving a person's application for a firearm permit or employment as a police or law enforcement officer, making a determination of an issue before the court, or for any other purpose other than that which is authorized by law or the Supreme Court of the State of New Jersey, shall be guilty of a crime of the fourth degree.
L.1999,c.421,s.1.
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New Jersey domestic violence laws are very strict. If there any signs of physical injuries the police must arrest the abuser. Even without independent witnesses and no physical injuries, police may arrest the abuser. Domestic Violence is a crime under the law, and the police must respond to the calls of victims. The police are required to give the victim information about their rights and to help them. Among other things, police must write up a report. For example, O.J. Simpson would not have gotten away with abuse in New Jersey. Police are automatically required to arrest an abuser if they see any evidence of abuse or assault. Even during the evening your town Municipal Court or Superior Court can issue a civil restraining order which is a legally enforceable document. The temporary restraining order will prohibit the defendant/abuser from harassing you or entering your residence. Unlike a criminal case where a person is provided with lengthy due process, and if guilty receives probation and a monetary fine, a domestic violence hearing allows judges to issue far reaching orders. A domestic violence hearing is usually held within only ten (10) days of the filing of an ex parte complaint and temporary restraining order. After a hearing , NJSA 2C:25-29 (b) allows the Chancery Division, Family Part Judge to grant substantial relief to the complainant. Among the relief the Court may give is: An order restraining the defendant from subjecting the victim to domestic violence, as defined in this act. An order granting exclusive possession to the plaintiff of the residence or household regardless of whether the residence or household is jointly or solely owned by the parties or jointly or solely leased by the parties... An order providing for visitation...[ meaning the complainant obtains custody] An order requiring the defendant to pay to the victim monetary compensation for losses suffered as a direct result of the act of domestic violence... An order restraining the defendant from entering the residence, property, school, or place of employment of the victim or of other family or household members of the victim... An order restraining the defendant from making any communication likely to cause annoyance or alarm... An order requiring that the defendant make or continue to make rent or mortgage payments on the residence occupied by the victim if the defendant is found to have a duty to support the victim or other dependent household members... An order granting either party temporary possession of specified personal property, such as an automobile, checkbook, documentation of health insurance, any identification documents, a key, and other personal effects. An order awarding emergent monetary relief to the victim and other dependents, if any. An ongoing obligation of support shall be determined at a later date pursuant to applicable law. An Order awarding temporary custody of a minor child. The court shall presume that the best interests of the child shall be served by an award of custody to the non- abusive parent. An Order requiring that a law enforcement officer accompany either party to the residence to supervise the removal of personal belongings. An Order permitting the victim and the defendant to occupy the same premises only if the plaintiff requests such an order. An Order granting any other appropriate relief for the plaintiff and minor children An Order that the defendant report to the intake office of the Family Part for monitoring An Order prohibiting the defendant from possessing any firearm or weapon Recent caselaw protects victims. In Pepe v Pepe, 258 N.J. Super. 157 (Chan. Div. 1992) held that the confidentiality provision of record keeping under the Domestic Violence act applies to the records kept on file with the Clerk of the Superior Court. The court held that in determining whether or not a statutory imposed confidential record should be made public, the court must consider whether the release of the documents will be harmful to the victim, whether adverse publicity will be a factor and whether access to court records will discourage the victim from coming forward. Despite the substantial financial burden and life restrictions (often referred to as penalties), the burden of proof in a DOMESTIC VIOLENCE hearing is only a preponderance of evidence. Hopefully, parties will put best interests of children ahead of short term animosity. Financial limitations often limit the family ability to become involved in lengthy divorce and custody battles. A DOMESTIC VIOLENCE complaint can be withdrawn. For additional information, speak with an attorney experienced in handling Domestic Violence matters. Domestic violence statute revised:
2C:25-29.1 Civil penalty for certain domestic violence offenders.
1.In addition to any other disposition, any person found by the court in a final hearing pursuant to section 13 of P.L.1991, c.261 (C.2C:25-29) to have committed an act of domestic violence shall be ordered by the court to pay a civil penalty of at least $50, but not to exceed $500. In imposing this civil penalty, the court shall take into consideration the nature and degree of injury suffered by the victim. The court may waive the penalty in cases of extreme financial hardship.
L.2001,c.195,s.1.
2C:25-29.2 Collection, distribution of civil penalties collected. 2.All civil penalties imposed pursuant to section 1 of P.L.2001, c.195 (C.2C:25-29.1) shall be collected as provided by the Rules of Court. All moneys collected shall be forwarded to the Domestic Violence Victims' Fund established pursuant to section 3 of P.L.2001, c.195 (C.30:14-15).
L.2001,c.195,s.2.
2C:25-29.3 Rules of Court.
4.The Supreme Court may promulgate Rules of Court to effectuate the purposes of this act.
L.2001,c.195,s.4.
2C:25-29.1 Civil penalty for certain domestic violence offenders.
1.In addition to any other disposition, any person found by the court in a final hearing pursuant to section 13 of P.L.1991, c.261 (C.2C:25-29) to have committed an act of domestic violence shall be ordered by the court to pay a civil penalty of at least $50, but not to exceed $500. In imposing this civil penalty, the court shall take into consideration the nature and degree of injury suffered by the victim. The court may waive the penalty in cases of extreme financial hardship.
L.2001,c.195,s.1.
2C:25-29.2 Collection, distribution of civil penalties collected. 2.All civil penalties imposed pursuant to section 1 of P.L.2001, c.195 (C.2C:25-29.1) shall be collected as provided by the Rules of Court. All moneys collected shall be forwarded to the Domestic Violence Victims' Fund established pursuant to section 3 of P.L.2001, c.195 (C.30:14-15).
L.2001,c.195,s.2.
2C:25-30. Violations, penalties 14. Except as provided below, a violation by the defendant of an order issued pursuant to this act shall constitute an offense under subsection b. of N.J.S.2C:29-9 and each order shall so state. All contempt proceedings conducted pursuant to N.J.S.2C:29-9 involving domestic violence orders, other than those constituting indictable offenses, shall be heard by the Family Part of the Chancery Division of the Superior Court. All contempt proceedings brought pursuant to P.L.1991, c.261 (C.2C:25-17 et seq.) shall be subject to any rules or guidelines established by the Supreme Court to guarantee the prompt disposition of criminal matters. Additionally, and notwithstanding the term of imprisonment provided in N.J.S.2C:43-8, any person convicted of a second or subsequent nonindictable domestic violence contempt offense shall serve a minimum term of not less than 30 days. Orders entered pursuant to paragraphs (3), (4), (5), (8) and (9) of subsection b. of section 13 of this act shall be excluded from enforcement under subsection b. of N.J.S.2C:29-9; however, violations of these orders may be enforced in a civil or criminal action initiated by the plaintiff or by the court, on its own motion, pursuant to applicable court rules.
L.1991,c.261,s.14; amended 1994,c.93,s.3; 1994,c.94,s.6.
2C:25-31 Contempt, law enforcement procedures.
15.Where a law enforcement officer finds that there is probable cause that a defendant has committed contempt of an order entered pursuant to the provisions of P.L.1981, c.426 (C.2C:25-1 et seq.) or P.L.1991, c.261 (C.2C:25-17 et seq.), the defendant shall be arrested and taken into custody by a law enforcement officer. The law enforcement officer shall follow these procedures:
The law enforcement officer shall transport the defendant to the police station or such other place as the law enforcement officer shall determine is proper. The law enforcement officer shall:
a.Conduct a search of the domestic violence central registry and sign a complaint concerning the incident which gave rise to the contempt charge;
b.Telephone or communicate in person or by facsimile with the appropriate judge assigned pursuant to this act and request bail be set on the contempt charge;
c.If the defendant is unable to meet the bail set, take the necessary steps to insure that the defendant shall be incarcerated at police headquarters or at the county jail; and
d.During regular court hours, the defendant shall have bail set by a Superior Court judge that day. On weekends, holidays and other times when the court is closed, the officer shall arrange to have the clerk of the Family Part notified on the next working day of the new complaint, the amount of bail, the defendant's whereabouts and all other necessary details. In addition, if a municipal court judge set the bail, the arresting officer shall notify the clerk of that municipal court of this information.
L.1991,c.261,s.15; amended 1994, c.94, s.7; 1999, c.421, s.5. 2C:25-32. Alleged contempt, complainant's procedure 16. Where a person alleges that a defendant has committed contempt of an order entered pursuant to the provisions of P.L.1981, c.426 (C.2C:25-1 et seq.) or P.L.1991, c.261, but where a law enforcement officer has found that there is not probable cause sufficient to arrest the defendant, the law enforcement officer shall advise the complainant of the procedure for completing and signing a criminal complaint alleging a violation of N.J.S.2C:29-9. During regular court hours, the assistance of the clerk of the Family Part of the Chancery Division of the Superior Court shall be made available to such complainants. Nothing in this section shall be construed to prevent the court from granting any other emergency relief it deems necessary.
L.1991,c.261,s.16.
2C:25-33 Records of applications for relief; reports; confidentiality; forms.
17. a. The Administrative Office of the Courts shall, with the assistance of the Attorney General and the county prosecutors, maintain a uniform record of all applications for relief pursuant to sections 9, 10, 11, 12, and 13 of P.L.1991, c.261 (C.2C:25-25, C.2C:25-26, C.2C:25-27, C.2C:25-28, and C.2C:25-29). The record shall include the following information:
(1)The number of criminal and civil complaints filed in all municipal courts and the Superior Court;
(2)The sex of the parties;
(3)The relationship of the parties;
(4)The relief sought or the offense charged, or both;
(5)The nature of the relief granted or penalty imposed, or both, including, but not limited to, the following:
(a)custody;
(b)child support;
(c)the specific restraints ordered;
(d)any requirements or conditions imposed pursuant to paragraphs (1) through (18) of subsection b. of section 13 of P.L.1991, c.261 (C.2C:25-29), including but not limited to professional counseling or psychiatric evaluations;
(6)The effective date of each order issued; and
(7)In the case of a civil action in which no permanent restraints are entered, or in the case of a criminal matter that does not proceed to trial, the reason or reasons for the disposition.
It shall be the duty of the Director of the Administrative Office of the Courts to compile and report annually to the Governor, the Legislature and the Advisory Council on Domestic Violence on the data tabulated from the records of these orders.
All records maintained pursuant to this act shall be confidential and shall not be made available to any individual or institution except as otherwise provided by law.
b.In addition to the provisions of subsection a. of this section, the Administrative Office of the Courts shall, with the assistance of the Attorney General and the county prosecutors, create and maintain uniform forms to record sentencing, bail conditions and dismissals. The forms shall be used by the Superior Court and by every municipal court to record any order in a case brought pursuant to this act. Such recording shall include but not be limited to, the specific restraints ordered, any requirements or conditions imposed on the defendant, and any conditions of bail.
L.1991,c.261,s.17; amended 1994, c.94, s.8; 1999, c.119, s.1; 1999, c.421, s.6.
2C:25-34 Domestic violence restraining orders, central registry.
1.The Administrative Office of the Courts shall establish and maintain a central registry of all persons who have had domestic violence restraining orders entered against them, all persons who have been charged with a crime or offense involving domestic violence, and all persons who have been charged with a violation of a court order involving domestic violence. All records made pursuant to this section shall be kept confidential and shall be released only to:
a.A public agency authorized to investigate a report of domestic violence;
b.A police or other law enforcement agency investigating a report of domestic violence, or conducting a background investigation involving a person's application for a firearm permit or employment as a police or law enforcement officer or for any other purpose authorized by law or the Supreme Court of the State of New Jersey; or
c.A court, upon its finding that access to such records may be necessary for determination of an issue before the court.
Any individual, agency or court which receives from the Administrative Office of the Courts the records referred to in this section shall keep such records and reports, or parts thereof, confidential and shall not disseminate or disclose such records and reports, or parts thereof; provided that nothing in this section shall prohibit a receiving individual, agency or court from disclosing records and reports, or parts thereof, in a manner consistent with and in furtherance of the purpose for which the records and reports or parts thereof were received.
Any individual who disseminates or discloses a record or report, or parts thereof, of the central registry, for a purpose other than investigating a report of domestic violence, conducting a background investigation involving a person's application for a firearm permit or employment as a police or law enforcement officer, making a determination of an issue before the court, or for any other purpose other than that which is authorized by law or the Supreme Court of the State of New Jersey, shall be guilty of a crime of the fourth degree.
L.1999,c.421,s.1.
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Burglary
f someone is Indicted for Burglary, the Judge will read portions of the following to the Jury. They are called Request to Charge.
BURGLARY IN THE THIRD DEGREE (N.J.S.A. 2C:18-2a)
The indictment charges the defendant with committing the crime of burglary. The indictment reads as follows:
(Read Indictment)
N.J.S.A. 2C:18-2a insofar as it is applicable to this case reads as follows:
A person is guilty of burglary if, with purpose to commit an offense therein the person:
(1) Enters a (research facility) (structure), or a separately secured or occupied portion thereof, unless the (research facility) (structure) was at the time open to the public or the person is licensed or privileged to enter; or
(2) Surreptitiously remains in a (research facility) (structure) or a separately secured or occupied portion thereof knowing that (he/she) is not licensed or privileged to do so.
Specifically, the defendant in this case is charged with entering with the purpose to commit an offense. I must therefore explain to you, first, what constitutes burglary under the law and second, what constitutes an offense. In order for you to find the defendant guilty of burglary, the State must prove beyond a reasonable doubt the following elements:
1. that the defendant entered1 the (research facility) (structure) known as without permission. 2. that the defendant did so with the purpose to commit an offense therein.
(WHERE APPLICABLE CHARGE PERTINENT PART OF N.J.S.A. 2C:1-14p):
Research facility means any building, laboratory, institution, organization, or school engaged in research, testing, educational or experimental activities, or any commercial or academic enterprise that uses warm-blooded or cold-blooded animals for food or fiber production, agriculture, research, testing, experimentation, or education. A research facility includes, but is not limited to, any enclosure, separately secured yard, pad, pond, vehicle, building structure or premises or separately secured portion thereof.
Structure includes any building [OR room, ship, vessel, car, vehicle, or airplane, and also means any place adapted for overnight accommodation of persons or for carrying on business therein] whether or not a person is actually present.2 "Purpose to commit an offense" means that the defendant intended to commit an unlawful act3 inside the (structure) (research facility). [WHERE APPLICABLE CHARGE: The unlawful act(s) allegedly intended are set forth in count(s) of this indictment.]4
A person acts purposely with respect to the nature of his conduct or a result thereof if it is (his/her) conscious object to engage in conduct of that nature or to cause such a result. Purpose, with purpose, and similar words have the same meaning.5 In other words, in order for you to find that the defendant acted purposely, the State must prove beyond a reasonable doubt that it was the defendant's conscious object at the time (he/she) unlawfully entered [OR surreptitiously remained in] the premises to commit an unlawful act.6
Purpose is a condition of the mind which cannot be seen and can only be determined by inferences from conduct, words or acts. A state of mind is rarely susceptible of direct proof, but must ordinarily be inferred from the facts. Therefore, it is not necessary, members of the jury, that witnesses be produced to testify that an accused said (he/she) acted purposely when (he/she) engaged in a particular act. (His/her) state of mind may be gathered from (his/her) acts and (his/her) conduct, and from all (he/she) said and did at the particular time and place, and from all of the surrounding circumstances.7 If you find that the State has proved the crime charged and each of its elements beyond a reasonable doubt, then you must find the defendant guilty. If you find that the State has failed to prove any element beyond a reasonable doubt, then you must find the defendant not guilty.
1 If "surreptitiously remaining" is in your case, charge as follows: that the defendant surreptitiously remained for some duration in the (research facility) (structure), or a separately secured or occupied portion thereof knowing that (he/she) was not licensed or privileged to do so. [See N.J.S.A. 2C:18-2a(2) and Cannel, Criminal Code Annotated, Comment 4, N.J.S.A. 2C:18-2 (requirement that this offense "requires a stay of some duration")]. "Surreptitiously" means secretly, stealthily, or fraudulently. [Black's Law Dictionary at p. 1445 (6th ed. 1990).
2 N.J.S.A. 2C:18-1.
3 State v. Robinson, 289 N.J. Super. 447, 455 (App. Div. 1996); N.J.S.A. 2C:1-14k.
4 "[W]here the circumstances surrounding the unlawful entry do not give rise to any ambiguity or uncertainty as to a defendant's purpose in entering a structure without privilege to do so [and] led inevitably and reasonably to the conclusion that some unlawful act is intended to be committed inside the structure, then specific instructions delineating the precise unlawful acts intended are unnecessary." Robinson, 289 N.J. Super. at 458 (emphasis in original). However, where the circumstances surrounding defendant's purpose in entering or surreptitiously remaining in the structure or research facility are ambiguous, i.e., the evidence suggests both criminal and non-criminal purposes for the entry, then it might be necessary to direct the jury's consideration to the specific criminal acts alleged in the indictment, if there are any. See, for instance, State v. Marquez, 277 N.J. Super. 162, 168-169 (App. Div. 1994).
5 N.J.S.A. 2C:2-2b(1).
6 If the jury may find from the facts that, although defendant entered the premises without permission he did not do so with the purpose to commit an offense therein, the jury must be charged on the appropriate lesser included offense of criminal trespass. See N.J.S.A. 2C:18-3.
7 See 2A Model Charge 4.181, INTENT and N.J.S.A. 2C:2-2.
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Kenneth Vercammen's Law office represents individuals charged with criminal, drug offenses, and serious traffic violations throughout New Jersey. Our office helps people with traffic/ municipal court tickets including drivers charged with Driving While Intoxicated, Refusal and Driving While Suspended.
Kenneth Vercammen was the NJ State Bar Municipal Court Attorney of the Year and past president of the Middlesex County Municipal Prosecutor's Association.
Criminal and Motor vehicle violations can cost you. You will have to pay fines in court or receive points on your drivers license. An accumulation of too many points, or certain moving violations may require you to pay expensive surcharges to the N.J. DMV [Division of Motor Vehicles] or have your license suspended. Don't give up! The Law Office of Kenneth Vercammen can provide experienced attorney representation for criminal motor vehicle violations.
When your job or driver's license is in jeopardy or you are facing thousands of dollars in fines, DMV surcharges and car insurance increases, you need excellent legal representation. The least expensive attorney is not always the answer. Schedule an appointment if you need experienced legal representation in a traffic/municipal court matter.
Our website www.njlaws.com provides information on traffic offenses we can be retained to represent people. Our website also provides details on jail terms for traffic violations and car insurance eligibility points. Car insurance companies increase rates or drop customers based on moving violations.
C.
BURGLARY IN THE THIRD DEGREE (N.J.S.A. 2C:18-2a)
The indictment charges the defendant with committing the crime of burglary. The indictment reads as follows:
(Read Indictment)
N.J.S.A. 2C:18-2a insofar as it is applicable to this case reads as follows:
A person is guilty of burglary if, with purpose to commit an offense therein the person:
(1) Enters a (research facility) (structure), or a separately secured or occupied portion thereof, unless the (research facility) (structure) was at the time open to the public or the person is licensed or privileged to enter; or
(2) Surreptitiously remains in a (research facility) (structure) or a separately secured or occupied portion thereof knowing that (he/she) is not licensed or privileged to do so.
Specifically, the defendant in this case is charged with entering with the purpose to commit an offense. I must therefore explain to you, first, what constitutes burglary under the law and second, what constitutes an offense. In order for you to find the defendant guilty of burglary, the State must prove beyond a reasonable doubt the following elements:
1. that the defendant entered1 the (research facility) (structure) known as without permission. 2. that the defendant did so with the purpose to commit an offense therein.
(WHERE APPLICABLE CHARGE PERTINENT PART OF N.J.S.A. 2C:1-14p):
Research facility means any building, laboratory, institution, organization, or school engaged in research, testing, educational or experimental activities, or any commercial or academic enterprise that uses warm-blooded or cold-blooded animals for food or fiber production, agriculture, research, testing, experimentation, or education. A research facility includes, but is not limited to, any enclosure, separately secured yard, pad, pond, vehicle, building structure or premises or separately secured portion thereof.
Structure includes any building [OR room, ship, vessel, car, vehicle, or airplane, and also means any place adapted for overnight accommodation of persons or for carrying on business therein] whether or not a person is actually present.2 "Purpose to commit an offense" means that the defendant intended to commit an unlawful act3 inside the (structure) (research facility). [WHERE APPLICABLE CHARGE: The unlawful act(s) allegedly intended are set forth in count(s) of this indictment.]4
A person acts purposely with respect to the nature of his conduct or a result thereof if it is (his/her) conscious object to engage in conduct of that nature or to cause such a result. Purpose, with purpose, and similar words have the same meaning.5 In other words, in order for you to find that the defendant acted purposely, the State must prove beyond a reasonable doubt that it was the defendant's conscious object at the time (he/she) unlawfully entered [OR surreptitiously remained in] the premises to commit an unlawful act.6
Purpose is a condition of the mind which cannot be seen and can only be determined by inferences from conduct, words or acts. A state of mind is rarely susceptible of direct proof, but must ordinarily be inferred from the facts. Therefore, it is not necessary, members of the jury, that witnesses be produced to testify that an accused said (he/she) acted purposely when (he/she) engaged in a particular act. (His/her) state of mind may be gathered from (his/her) acts and (his/her) conduct, and from all (he/she) said and did at the particular time and place, and from all of the surrounding circumstances.7 If you find that the State has proved the crime charged and each of its elements beyond a reasonable doubt, then you must find the defendant guilty. If you find that the State has failed to prove any element beyond a reasonable doubt, then you must find the defendant not guilty.
1 If "surreptitiously remaining" is in your case, charge as follows: that the defendant surreptitiously remained for some duration in the (research facility) (structure), or a separately secured or occupied portion thereof knowing that (he/she) was not licensed or privileged to do so. [See N.J.S.A. 2C:18-2a(2) and Cannel, Criminal Code Annotated, Comment 4, N.J.S.A. 2C:18-2 (requirement that this offense "requires a stay of some duration")]. "Surreptitiously" means secretly, stealthily, or fraudulently. [Black's Law Dictionary at p. 1445 (6th ed. 1990).
2 N.J.S.A. 2C:18-1.
3 State v. Robinson, 289 N.J. Super. 447, 455 (App. Div. 1996); N.J.S.A. 2C:1-14k.
4 "[W]here the circumstances surrounding the unlawful entry do not give rise to any ambiguity or uncertainty as to a defendant's purpose in entering a structure without privilege to do so [and] led inevitably and reasonably to the conclusion that some unlawful act is intended to be committed inside the structure, then specific instructions delineating the precise unlawful acts intended are unnecessary." Robinson, 289 N.J. Super. at 458 (emphasis in original). However, where the circumstances surrounding defendant's purpose in entering or surreptitiously remaining in the structure or research facility are ambiguous, i.e., the evidence suggests both criminal and non-criminal purposes for the entry, then it might be necessary to direct the jury's consideration to the specific criminal acts alleged in the indictment, if there are any. See, for instance, State v. Marquez, 277 N.J. Super. 162, 168-169 (App. Div. 1994).
5 N.J.S.A. 2C:2-2b(1).
6 If the jury may find from the facts that, although defendant entered the premises without permission he did not do so with the purpose to commit an offense therein, the jury must be charged on the appropriate lesser included offense of criminal trespass. See N.J.S.A. 2C:18-3.
7 See 2A Model Charge 4.181, INTENT and N.J.S.A. 2C:2-2.
Receive free NJ Laws Email newsletter with current laws and cases
Telephone Consultation Program
New Article of the Week
Meet with an experienced Attorney to handle your important legal needs.
Please call the office to schedule a confidential "in Office" consultation.
Attorneys are not permitted to provide legal advice by email.
Kenneth Vercammen's Law office represents individuals charged with criminal, drug offenses, and serious traffic violations throughout New Jersey. Our office helps people with traffic/ municipal court tickets including drivers charged with Driving While Intoxicated, Refusal and Driving While Suspended.
Kenneth Vercammen was the NJ State Bar Municipal Court Attorney of the Year and past president of the Middlesex County Municipal Prosecutor's Association.
Criminal and Motor vehicle violations can cost you. You will have to pay fines in court or receive points on your drivers license. An accumulation of too many points, or certain moving violations may require you to pay expensive surcharges to the N.J. DMV [Division of Motor Vehicles] or have your license suspended. Don't give up! The Law Office of Kenneth Vercammen can provide experienced attorney representation for criminal motor vehicle violations.
When your job or driver's license is in jeopardy or you are facing thousands of dollars in fines, DMV surcharges and car insurance increases, you need excellent legal representation. The least expensive attorney is not always the answer. Schedule an appointment if you need experienced legal representation in a traffic/municipal court matter.
Our website www.njlaws.com provides information on traffic offenses we can be retained to represent people. Our website also provides details on jail terms for traffic violations and car insurance eligibility points. Car insurance companies increase rates or drop customers based on moving violations.
C.
Juvenile Law
Handling juvenile delinquency cases is becoming a sub-specialty that requires special knowledge of the juvenile justice system. Juvenile cases are difficult to handle for different reasons:
(1) The juveniles often refuse to admit to their attorney any participation in the offense despite clear guilt. (2) The parents sometimes refuse to acknowledge their child's involvement. (3) Different rules and court systems are involved.
By commitment and preparation, you can obtain excellent results and satisfy clients. Too often lawyers throw up their hands when a client presents a criminal charge. Rather than simply suggest that a client plead guilty and avoid litigation, an attorney should accept the challenge and apply his best legal talents to protect the client's rights.
Attorneys should never provide legal advice over the telephone. We do however often advise potential clients of some of the mandatory penalties and incarceration or custodial terms that the court could impose. This makes people realize the seriousness of the charges against them. We direct them to bring in a copy of the complaint, all their papers in connection with their case and any documents they received from their state's Division of Motor Vehicles. Oftentimes I will instruct them to write a narrative if it is a case that is fact- specific or involves a great deal of detail, such as an assault case. When the client is first in the office, I have him fill out the Confidential New Criminal Case Interview Sheet. We obtain background information such as their name, address, the offenses charged, date of the person's arrest, other witnesses, statements given to them by the police, their occupation and information regarding prior criminal convictions. Our interview sheet also asks if there is anything else important. The extent to which the client fills out the form lets us know whether or not the client will follow instructions and cooperate with us.
After reviewing the summons and the interview sheet, I ask a series of questions of the client. We request the client wait until the end of the interview before explaining their side of the story. We also ask them if there is anything else of importance in connection with the case that we should know. The client may have pending serious criminal charges in another state or county. I usually open up our statute book and show the clients the specific language of the offense they are charged with and explain to them the maximum penalties that could be imposed. By understanding the charges they are facing, my clients are more likely to realize the seriousness of the offense and pay our retainer. The ABA adopted Rules of Professional Conduct indicate a retainer letter or written statement of fees is required for new clients. I also provide all my clients with a brochure explaining how to appear in court, a brochure on surcharges, a brochure on points, and a brochure regarding alcohol counseling/substance abuse treatment, if applicable. I recommend that my clients provide me with a list of between 10 to 15 reasons why they should not go to jail and why the court should impose the minimum license suspension. This provides us with information for mitigation and penalties and also provides information to be considered by the judge in sentencing.
I. WHO IS THE CLIENT?
The client must be the juvenile charged. It is not the parent or grandmother who pays the bills. It is important to preserve the confidence of the client. I let the juvenile know that they can call us whenever they want, and we will not tell their parents anything told in confidence. Discovery in non-motor vehicle cases is requested in writing to the County Prosecutor, not the Municipal Prosecutor. Motor vehicle charges alone are heard by the Municipal Court Judge and handled by the Municipal Prosecutor.
We also send a discovery request to the police department involved. If the Complaint was signed by a private citizen (such as harassment or shoplifting), we will serve a specific request for discovery upon the complainant. Under the Court Rules, discovery should be supplied within twenty (20) days. Mark your calendar for thirty (30) days, then call up and request discovery. If requests are ignored, file a Motion to Dismiss Complaint or to Compel Discovery. Trial Call is the next appearance and the defense counsel will receive discovery, if it has not previously been received. Applicable motions should be filed prior to the trial call: Motion to Suppress, Compel Additional Discovery, Dismiss Complaint, etc. Juveniles have most of the same rights under the Constitution as adults: - 4th Amendment - No unreasonable searches - 5th Amendment - Right to Remain Silent - 6th Amendment - Right to Attorney - 6th Amendment - Right to Cross Examine Witnesses
Unlike adults, juveniles do not have a right to a jury trial and do not have to post bail. It is a popular misconception that juvenile arrests are automatically erased when the juvenile turns 18. The criminal "charge", even if later dismissed, stays on their record forever unless they have their attorney file a formal petition for Expungement.
Once we receive our retainer, we begin work right away. Usually while the client is still in the office, we prepare a discovery letter on the computer to the prosecutor and court and hand a copy to the client. We occasionally call the court to advise them that we will be handling the case.
However, we usually recommend the client obtain the first adjournment in drunk driving cases or other serious charges. It makes it easier for our law office to obtain our own adjournment later on, if necessary, rather than having the law office call a second time and ask for a second adjournment. We call the court to determine the name of the judge and prosecutor.
We require a great deal of cooperation from our clients. We have our process servers or clients serve the subpoenas on the Division of Motor Vehicles, insurance companies or other entities.
We require our clients to take photographs of accident sites and prepare diagrams and provide us with the names, addresses and telephone numbers of witnesses. Law is a business. I try to impress my clients and hope that they will send additional clients.
II. POST INTERVIEW PREPARATION We also make a Motion to Suppress where there is a question regarding the validity of a stop or search. New Jersey will also permit you to make a Motion to Dismiss on De Minimis Infractions for non-substantial offenses (i.e. shoplifting one candy bar). Any other Motions to Dismiss should be made in writing such as statute of limitations or lack of jurisdiction.
Oftentimes in cases that deal with just one triable issue such as the admissibility of a blood test result regarding alcohol or drugs, you can make a Motion in Limine or suggest a pre-trial conference. It is often a good idea to try to have the judge decide a crucial issue by motion in order to save you a six hour trial. If the court rules against you in the Motion in Limine, you can enter a guilty plea contingent upon reserving your right to appeal on that one issue to an Appellate Court.
III. ADDITIONAL DISCOVERY PHASE In the case involving essential witnesses, we write to the witnesses and ask them to call us so that we can find out what really happened. If possible I have a law clerk call up after we send the initial letter. The attorney could not testify if the witness provides an inconsistent statement but our law clerks could testify. I sometimes speak to the witness myself later to make a decision to determine whether or not the witnesses are credible. You must protect yourself from looking like a fool. Oftentimes the clients are not telling the truth and the witnesses are not telling the truth. Upon receiving discovery, we forward a photocopy of all discovery to our client. We then discuss with the client whether or not we have a reasonable prospect of winning. It is also a good idea to know the prosecutor's position on your case.
IV. PREPARING FOR TRIAL If it is a drug case, we may make an objection to the entry of the lab certificate as evidence at trial. We are also under a responsibility to provide any reciprocal discovery to the prosecutor. Occasionally, we will call the prosecutor ahead of time to see if a matter can be worked out or plea bargained.
We prepare a Subpoena ad Testificandum for witnesses to testify and Subpoena Duces Tecum for witnesses to bring documents. We have our clients hand deliver the subpoenas and write out their own check for the subpoena fees. On the day of the trial, I bring a huge brief case containing my equipment for battle: Court Rules, Traffic and Criminal Code, Evidence Book, my case file, and my cumulative folder on the topic of law (i.e. Drunk Driving, Drug Possession, etc.). It is better to be over-prepared than under-prepared.
THE OFFENSE AND ARREST
Police are permitted to arrest if they see a crime or are provided with information that a juvenile committed a crime. The police then sign a Complaint Form, which later is forwarded to the Superior Court, Family Part, in the county where the juvenile lives. Generally, the juvenile will be released to the custody of parents or guardians. Rule 5:21-5. A person is a juvenile for delinquency purposes until his/her 18th birthday. For serious crimes, if the juvenile is a threat to themselves or the community, or if the juvenile is a habitual offender, they can be brought to the County Juvenile Detention Center. They will remain in detention until released by the Superior Court Judge at a recall hearing, after a probable cause hearing or at the conclusion of the case. It is rare and serious when a juvenile is held at the Detention Center.
MIRANDA WARNING AND CONFESSIONS
Police must provide Miranda Warning to juveniles. Parents/guardians do not have to be present for police questioning. If a confession was given and you need to try and preclude the admission of a confession, the issue will be whether the waiver of Miranda Warning was "knowing and voluntary" by the juvenile. Caselaw indicates both juveniles and even retarded citizens can waive their right to remain silent.
DIVERSION OF CRIMINAL CHARGES
In many counties, the County Prosecutor's office screens each complaint initially, but staff within the Family Court can make the decision to divert the case or not. Diversion for many cases means removing them from court altogether and sending them for total handling to a Juvenile Conference Committee (J.C.C.) or intake service conference. See the Criminal Justice System, "Guide for School Personnel," Middlesex County Prosecutor's Office, p. 20 (1996). The first rung on the diversion ladder is the Juvenile Conference Committee (J.C.C.), which is a town-based group of citizens who work with the juvenile offender to devise an appropriate resolution of the case. Rule 5:25-l. Citizen members are appointed to recommend to the court how to handle selected juvenile cases. Members meet with the juveniles and make recommendations which may include restitution, participation in a job placement or community service program, counseling, or other conditions.
An "informal" hearing is a case sent to the "informal" calendar. There is a trial heard by either a Superior Court Judge or a specially designated Municipal Court Judge. This involves a Superior Court appearance. The police are subpoenaed to testify but the County Prosecutor does not prosecute the case. At an informal, no possibility of incarceration exists. If found delinquent (guilty), the judge can either put the juvenile on probation or make a "deferred adjudication." The court will impose the condition that if the juvenile stays out of trouble for a specified period of time (six months to a year and a half), the charges will be dismissed. In a "deferred adjudication" the judge may direct the juvenile to perform a job, write an essay, be on unsupervised probation, or direct other requirements. The juvenile must earn dismissal by fulfilling conditions such as restitution, community service, counseling, or school attendance. For juveniles with prior charges or more serious charges, the case is put on the formal trial calendar. These proceedings resemble adult criminal proceedings. The juvenile must be represented by an attorney and the state is represented by an Assistant Prosecutor.
FORMAL TRIAL If the case goes to trial, the judge serves as the fact-finder and makes all decisions, unlike adult court where those charged can have a jury trial. The trial is held before a Superior Court Judge in the county where the juvenile resides. Rule 5:19-1.
Another major difference in juvenile cases is that the prosecutor does not make binding sentencing recommendations as part of a plea bargain. The judge has total discretion regarding the sentence imposed. If the juvenile pleads guilty or is found delinquent (guilty), the judge has the discretion on sentence - deferred adjudication, probation, incarceration, residential placement, restitution, fine, etc. Criminal Justice System, supra at 21. Relatively few juveniles are currently incarcerated but the number may increase as legislative changes require jail terms for juveniles who commit certain offenses such as auto thefts and for juveniles who continue to commit more and more heinous offenses. For the most serious crimes, the County Prosecutor can make a motion to remove to the Adult Criminal Court. Rule 5:22-1, Rule 5:22-2.
FIRST APPEARANCE IN FORMAL TRIAL CASES
The Court itself will send a copy of the Complaint to the juvenile's parents and a Mandatory Notice to Appear for an Interview for Public Defender Eligibility. The Public Defender handles only indigent cases - juveniles whose parents are on welfare, unemployed, and have no assets. This mandatory appearance is unnecessary once the client retains an attorney and the attorney sends in a Notice of Appearance.
THE TRIAL
Interview witnesses to determine if they will be credible and help your client. Serve your subpoenas on witnesses in sufficient time prior to trial. Have your legal research done prior to trial, such as on constructive possession of drugs or stolen property. Over the years I have made it a practice to build up files on particular legal subjects with complete case law. I now have files for drunk driving, driving while suspended, speeding, drug possession, and careless driving. Preparation is the key to winning cases. I often practice an opening statement and argument on a tape recorder in my car and play it back to determine if I have all the facts at my fingertips. Upon arrival at court, we will attempt to ascertain if the police officer is available.
Sometimes the police officer is on vacation, retired, unavailable or suspended and this will assist your ability to work out a satisfactory arrangement for your client.
You also must make sure that your client is prepared and looks neat.
The Grateful Dead and Budweiser T-shirts should be replaced with something that looks presentable. They should wear neat clothes - shirts with collars, dress shoes and pants. Suits or T-shirts should not be worn. There is no prohibition against speaking with State's witnesses. Outside of the court room, I usually call out the name of the non-law enforcement State's witnesses to determine if they are present and to determine what their version of the facts are. If you know you are going to have a trial, attempt to have the case marked ready hold for an hour later, otherwise you will be sitting around for a long period of time. If you have an excellent trial issue but believe the judge is going to rule against you, bring an appeal notice with you and file it with the Court on the record.
V. PLEA TO A LESSER DEFENSE When your case is called, speak clearly before the court, providing your name and spelling out your name and where you are located. The judges always like to know the names of new or unfamiliar attorneys.
Your name is your future and announcing it also provides free publicity for yourself. The judges and prosecutors want to move the calendar.
However, your obligation is always to your client. Sometimes you have nothing to lose by trying a case. Courts are forbidden from increasing penalties merely because someone excused their constitutional right to a trial.
If your client is going to enter a guilty plea to any offense, it is important that they understand what the offense is and put a factual basis on the record. You will be embarrassed if your client is pleading guilty to a drunk driving case and the judge asked your client what he had to drink, the client insists he only had one beer. The judge will send you back to your seat and must refuse to take the guilty plea unless an adequate factual basis is put on the record. Having previously obtained for my client their favorable background, I usually put on the record reasons why the judge should give them the minimum penalties.
Most states, such as New Jersey have a conditional discharge, pre-trial intervention, or other programs that are available to clients charged with drug offenses who have never previously been arrested or previously been convicted of the drug offense. Again, to avoid embarrassment, it is a good idea to speak with the prosecutor and the police officer because they may have a criminal abstract to indicate that the client is not eligible for a conditional discharge type program. Letters of reference and character reference letters are helpful in cases where the judge has wide discretion in his sentencing. After the client pleads guilty, it is a good idea to also ask the client on the record if he has any questions of myself or of the court.
VI. CONCLUSION Whether or not you have a trial or there is a plea to reduce the charge, you wish to walk out knowing you did the best you could for your client. Even if you lose, you want to have been such an articulate advocate that your client walks out saying my attorney is great but the judge is wrong. Always be innovative and prepare new arguments. Plea bargaining varies from state to state so you must be aware of where it is permitted. You must be able to show your ingenuity and desire to win.
We handle a substantial amount of municipal court and personal injury cases. If you have an overly difficult case and have problems handling it, your client may benefit if the case is referred to a more experienced attorney.
IMPORTANT LAWS MOST JUVENILES DON'T KNOW ABOUT
Assault: Any assault committed against any teacher, school board employee, school board member, or school administrator is an aggravated assault. NJSA 2C:12-1 et seq.
Graffiti: Penalties are increased for graffiti, and include driver's license loss for juveniles, P.L. 1995 c. 251. Amends NJSA 2C:17-3 (Criminal mischief and other statutes). In the case of a person who at the time of the imposition of sentence is less than 17 years of age, the period of the suspension of driving privileges authorized herein, including a suspension of the privilege of operating a motorized bicycle, shall commence on the day the sentence is imposed and shall run for a period of one year after the day the person reaches the age of 17 years. If the driving privilege of any person is under revocation, suspension, or postponement for a violation of any provision of this Title or Title 39 of the Revised Statutes at the time of any conviction or adjudication of delinquency for a violation of any offense defined in this section, the revocation, suspension, or postponement period imposed herein shall commence as of the date of termination of the existing revocation, suspension, or postponement. Any person convicted of criminal mischief involving graffiti may be required to pay to the owner monetary restitution and perform community service and remove graffiti.
Drugs: Sample Mandatory Penalties for Juvenile - Possession of Small Amounts of Marijuana: -Suspension of Driver's License: 2C:35-16 Six months to two years from date of sentence. -DEDR Penalty $500 required under NJSA 2C:35-15a. This $500 penalty is required even in juvenile cases, as required by statute. State in Intent of LM 22 NJ Super 88, (App. Div. 88) court denied 114 NJ 485
(1989) -Drug Lab Fee $50 2C:35-20a -VCCB $50 according to 2C:43-3.1a(2)(o) -Safe Streets - Fee due upon conviction, PTI or CD $75
Receive free NJ Laws Email newsletter with current laws and cases
Telephone Consultation Program
New Article of the Week
Meet with an experienced Attorney to handle your important legal needs.
Please call the office to schedule a confidential "in Office" consultation.
Attorneys are not permitted to provide legal advice by email.
Kenneth Vercammen's Law office represents individuals charged with criminal, drug offenses, and serious traffic violations throughout New Jersey. Our office helps people with traffic/ municipal court tickets including drivers charged with Driving While Intoxicated, Refusal and Driving While Suspended.
Kenneth Vercammen was the NJ State Bar Municipal Court Attorney of the Year and past president of the Middlesex County Municipal Prosecutor's Association.
Criminal and Motor vehicle violations can cost you. You will have to pay fines in court or receive points on your drivers license. An accumulation of too many points, or certain moving violations may require you to pay expensive surcharges to the N.J. DMV [Division of Motor Vehicles] or have your license suspended. Don't give up! The Law Office of Kenneth Vercammen can provide experienced attorney representation for criminal motor vehicle violations.
When your job or driver's license is in jeopardy or you are facing thousands of dollars in fines, DMV surcharges and car insurance increases, you need excellent legal representation. The least expensive attorney is not always the answer. Schedule an appointment if you need experienced legal representation in a traffic/municipal court matter.
Our website www.njlaws.com provides information on traffic offenses we can be retained to represent people. Our website also provides details on jail terms for traffic violations and car insurance eligibility points. Car insurance companies increase rates or drop customers based on moving violations.
(1) The juveniles often refuse to admit to their attorney any participation in the offense despite clear guilt. (2) The parents sometimes refuse to acknowledge their child's involvement. (3) Different rules and court systems are involved.
By commitment and preparation, you can obtain excellent results and satisfy clients. Too often lawyers throw up their hands when a client presents a criminal charge. Rather than simply suggest that a client plead guilty and avoid litigation, an attorney should accept the challenge and apply his best legal talents to protect the client's rights.
Attorneys should never provide legal advice over the telephone. We do however often advise potential clients of some of the mandatory penalties and incarceration or custodial terms that the court could impose. This makes people realize the seriousness of the charges against them. We direct them to bring in a copy of the complaint, all their papers in connection with their case and any documents they received from their state's Division of Motor Vehicles. Oftentimes I will instruct them to write a narrative if it is a case that is fact- specific or involves a great deal of detail, such as an assault case. When the client is first in the office, I have him fill out the Confidential New Criminal Case Interview Sheet. We obtain background information such as their name, address, the offenses charged, date of the person's arrest, other witnesses, statements given to them by the police, their occupation and information regarding prior criminal convictions. Our interview sheet also asks if there is anything else important. The extent to which the client fills out the form lets us know whether or not the client will follow instructions and cooperate with us.
After reviewing the summons and the interview sheet, I ask a series of questions of the client. We request the client wait until the end of the interview before explaining their side of the story. We also ask them if there is anything else of importance in connection with the case that we should know. The client may have pending serious criminal charges in another state or county. I usually open up our statute book and show the clients the specific language of the offense they are charged with and explain to them the maximum penalties that could be imposed. By understanding the charges they are facing, my clients are more likely to realize the seriousness of the offense and pay our retainer. The ABA adopted Rules of Professional Conduct indicate a retainer letter or written statement of fees is required for new clients. I also provide all my clients with a brochure explaining how to appear in court, a brochure on surcharges, a brochure on points, and a brochure regarding alcohol counseling/substance abuse treatment, if applicable. I recommend that my clients provide me with a list of between 10 to 15 reasons why they should not go to jail and why the court should impose the minimum license suspension. This provides us with information for mitigation and penalties and also provides information to be considered by the judge in sentencing.
I. WHO IS THE CLIENT?
The client must be the juvenile charged. It is not the parent or grandmother who pays the bills. It is important to preserve the confidence of the client. I let the juvenile know that they can call us whenever they want, and we will not tell their parents anything told in confidence. Discovery in non-motor vehicle cases is requested in writing to the County Prosecutor, not the Municipal Prosecutor. Motor vehicle charges alone are heard by the Municipal Court Judge and handled by the Municipal Prosecutor.
We also send a discovery request to the police department involved. If the Complaint was signed by a private citizen (such as harassment or shoplifting), we will serve a specific request for discovery upon the complainant. Under the Court Rules, discovery should be supplied within twenty (20) days. Mark your calendar for thirty (30) days, then call up and request discovery. If requests are ignored, file a Motion to Dismiss Complaint or to Compel Discovery. Trial Call is the next appearance and the defense counsel will receive discovery, if it has not previously been received. Applicable motions should be filed prior to the trial call: Motion to Suppress, Compel Additional Discovery, Dismiss Complaint, etc. Juveniles have most of the same rights under the Constitution as adults: - 4th Amendment - No unreasonable searches - 5th Amendment - Right to Remain Silent - 6th Amendment - Right to Attorney - 6th Amendment - Right to Cross Examine Witnesses
Unlike adults, juveniles do not have a right to a jury trial and do not have to post bail. It is a popular misconception that juvenile arrests are automatically erased when the juvenile turns 18. The criminal "charge", even if later dismissed, stays on their record forever unless they have their attorney file a formal petition for Expungement.
Once we receive our retainer, we begin work right away. Usually while the client is still in the office, we prepare a discovery letter on the computer to the prosecutor and court and hand a copy to the client. We occasionally call the court to advise them that we will be handling the case.
However, we usually recommend the client obtain the first adjournment in drunk driving cases or other serious charges. It makes it easier for our law office to obtain our own adjournment later on, if necessary, rather than having the law office call a second time and ask for a second adjournment. We call the court to determine the name of the judge and prosecutor.
We require a great deal of cooperation from our clients. We have our process servers or clients serve the subpoenas on the Division of Motor Vehicles, insurance companies or other entities.
We require our clients to take photographs of accident sites and prepare diagrams and provide us with the names, addresses and telephone numbers of witnesses. Law is a business. I try to impress my clients and hope that they will send additional clients.
II. POST INTERVIEW PREPARATION We also make a Motion to Suppress where there is a question regarding the validity of a stop or search. New Jersey will also permit you to make a Motion to Dismiss on De Minimis Infractions for non-substantial offenses (i.e. shoplifting one candy bar). Any other Motions to Dismiss should be made in writing such as statute of limitations or lack of jurisdiction.
Oftentimes in cases that deal with just one triable issue such as the admissibility of a blood test result regarding alcohol or drugs, you can make a Motion in Limine or suggest a pre-trial conference. It is often a good idea to try to have the judge decide a crucial issue by motion in order to save you a six hour trial. If the court rules against you in the Motion in Limine, you can enter a guilty plea contingent upon reserving your right to appeal on that one issue to an Appellate Court.
III. ADDITIONAL DISCOVERY PHASE In the case involving essential witnesses, we write to the witnesses and ask them to call us so that we can find out what really happened. If possible I have a law clerk call up after we send the initial letter. The attorney could not testify if the witness provides an inconsistent statement but our law clerks could testify. I sometimes speak to the witness myself later to make a decision to determine whether or not the witnesses are credible. You must protect yourself from looking like a fool. Oftentimes the clients are not telling the truth and the witnesses are not telling the truth. Upon receiving discovery, we forward a photocopy of all discovery to our client. We then discuss with the client whether or not we have a reasonable prospect of winning. It is also a good idea to know the prosecutor's position on your case.
IV. PREPARING FOR TRIAL If it is a drug case, we may make an objection to the entry of the lab certificate as evidence at trial. We are also under a responsibility to provide any reciprocal discovery to the prosecutor. Occasionally, we will call the prosecutor ahead of time to see if a matter can be worked out or plea bargained.
We prepare a Subpoena ad Testificandum for witnesses to testify and Subpoena Duces Tecum for witnesses to bring documents. We have our clients hand deliver the subpoenas and write out their own check for the subpoena fees. On the day of the trial, I bring a huge brief case containing my equipment for battle: Court Rules, Traffic and Criminal Code, Evidence Book, my case file, and my cumulative folder on the topic of law (i.e. Drunk Driving, Drug Possession, etc.). It is better to be over-prepared than under-prepared.
THE OFFENSE AND ARREST
Police are permitted to arrest if they see a crime or are provided with information that a juvenile committed a crime. The police then sign a Complaint Form, which later is forwarded to the Superior Court, Family Part, in the county where the juvenile lives. Generally, the juvenile will be released to the custody of parents or guardians. Rule 5:21-5. A person is a juvenile for delinquency purposes until his/her 18th birthday. For serious crimes, if the juvenile is a threat to themselves or the community, or if the juvenile is a habitual offender, they can be brought to the County Juvenile Detention Center. They will remain in detention until released by the Superior Court Judge at a recall hearing, after a probable cause hearing or at the conclusion of the case. It is rare and serious when a juvenile is held at the Detention Center.
MIRANDA WARNING AND CONFESSIONS
Police must provide Miranda Warning to juveniles. Parents/guardians do not have to be present for police questioning. If a confession was given and you need to try and preclude the admission of a confession, the issue will be whether the waiver of Miranda Warning was "knowing and voluntary" by the juvenile. Caselaw indicates both juveniles and even retarded citizens can waive their right to remain silent.
DIVERSION OF CRIMINAL CHARGES
In many counties, the County Prosecutor's office screens each complaint initially, but staff within the Family Court can make the decision to divert the case or not. Diversion for many cases means removing them from court altogether and sending them for total handling to a Juvenile Conference Committee (J.C.C.) or intake service conference. See the Criminal Justice System, "Guide for School Personnel," Middlesex County Prosecutor's Office, p. 20 (1996). The first rung on the diversion ladder is the Juvenile Conference Committee (J.C.C.), which is a town-based group of citizens who work with the juvenile offender to devise an appropriate resolution of the case. Rule 5:25-l. Citizen members are appointed to recommend to the court how to handle selected juvenile cases. Members meet with the juveniles and make recommendations which may include restitution, participation in a job placement or community service program, counseling, or other conditions.
An "informal" hearing is a case sent to the "informal" calendar. There is a trial heard by either a Superior Court Judge or a specially designated Municipal Court Judge. This involves a Superior Court appearance. The police are subpoenaed to testify but the County Prosecutor does not prosecute the case. At an informal, no possibility of incarceration exists. If found delinquent (guilty), the judge can either put the juvenile on probation or make a "deferred adjudication." The court will impose the condition that if the juvenile stays out of trouble for a specified period of time (six months to a year and a half), the charges will be dismissed. In a "deferred adjudication" the judge may direct the juvenile to perform a job, write an essay, be on unsupervised probation, or direct other requirements. The juvenile must earn dismissal by fulfilling conditions such as restitution, community service, counseling, or school attendance. For juveniles with prior charges or more serious charges, the case is put on the formal trial calendar. These proceedings resemble adult criminal proceedings. The juvenile must be represented by an attorney and the state is represented by an Assistant Prosecutor.
FORMAL TRIAL If the case goes to trial, the judge serves as the fact-finder and makes all decisions, unlike adult court where those charged can have a jury trial. The trial is held before a Superior Court Judge in the county where the juvenile resides. Rule 5:19-1.
Another major difference in juvenile cases is that the prosecutor does not make binding sentencing recommendations as part of a plea bargain. The judge has total discretion regarding the sentence imposed. If the juvenile pleads guilty or is found delinquent (guilty), the judge has the discretion on sentence - deferred adjudication, probation, incarceration, residential placement, restitution, fine, etc. Criminal Justice System, supra at 21. Relatively few juveniles are currently incarcerated but the number may increase as legislative changes require jail terms for juveniles who commit certain offenses such as auto thefts and for juveniles who continue to commit more and more heinous offenses. For the most serious crimes, the County Prosecutor can make a motion to remove to the Adult Criminal Court. Rule 5:22-1, Rule 5:22-2.
FIRST APPEARANCE IN FORMAL TRIAL CASES
The Court itself will send a copy of the Complaint to the juvenile's parents and a Mandatory Notice to Appear for an Interview for Public Defender Eligibility. The Public Defender handles only indigent cases - juveniles whose parents are on welfare, unemployed, and have no assets. This mandatory appearance is unnecessary once the client retains an attorney and the attorney sends in a Notice of Appearance.
THE TRIAL
Interview witnesses to determine if they will be credible and help your client. Serve your subpoenas on witnesses in sufficient time prior to trial. Have your legal research done prior to trial, such as on constructive possession of drugs or stolen property. Over the years I have made it a practice to build up files on particular legal subjects with complete case law. I now have files for drunk driving, driving while suspended, speeding, drug possession, and careless driving. Preparation is the key to winning cases. I often practice an opening statement and argument on a tape recorder in my car and play it back to determine if I have all the facts at my fingertips. Upon arrival at court, we will attempt to ascertain if the police officer is available.
Sometimes the police officer is on vacation, retired, unavailable or suspended and this will assist your ability to work out a satisfactory arrangement for your client.
You also must make sure that your client is prepared and looks neat.
The Grateful Dead and Budweiser T-shirts should be replaced with something that looks presentable. They should wear neat clothes - shirts with collars, dress shoes and pants. Suits or T-shirts should not be worn. There is no prohibition against speaking with State's witnesses. Outside of the court room, I usually call out the name of the non-law enforcement State's witnesses to determine if they are present and to determine what their version of the facts are. If you know you are going to have a trial, attempt to have the case marked ready hold for an hour later, otherwise you will be sitting around for a long period of time. If you have an excellent trial issue but believe the judge is going to rule against you, bring an appeal notice with you and file it with the Court on the record.
V. PLEA TO A LESSER DEFENSE When your case is called, speak clearly before the court, providing your name and spelling out your name and where you are located. The judges always like to know the names of new or unfamiliar attorneys.
Your name is your future and announcing it also provides free publicity for yourself. The judges and prosecutors want to move the calendar.
However, your obligation is always to your client. Sometimes you have nothing to lose by trying a case. Courts are forbidden from increasing penalties merely because someone excused their constitutional right to a trial.
If your client is going to enter a guilty plea to any offense, it is important that they understand what the offense is and put a factual basis on the record. You will be embarrassed if your client is pleading guilty to a drunk driving case and the judge asked your client what he had to drink, the client insists he only had one beer. The judge will send you back to your seat and must refuse to take the guilty plea unless an adequate factual basis is put on the record. Having previously obtained for my client their favorable background, I usually put on the record reasons why the judge should give them the minimum penalties.
Most states, such as New Jersey have a conditional discharge, pre-trial intervention, or other programs that are available to clients charged with drug offenses who have never previously been arrested or previously been convicted of the drug offense. Again, to avoid embarrassment, it is a good idea to speak with the prosecutor and the police officer because they may have a criminal abstract to indicate that the client is not eligible for a conditional discharge type program. Letters of reference and character reference letters are helpful in cases where the judge has wide discretion in his sentencing. After the client pleads guilty, it is a good idea to also ask the client on the record if he has any questions of myself or of the court.
VI. CONCLUSION Whether or not you have a trial or there is a plea to reduce the charge, you wish to walk out knowing you did the best you could for your client. Even if you lose, you want to have been such an articulate advocate that your client walks out saying my attorney is great but the judge is wrong. Always be innovative and prepare new arguments. Plea bargaining varies from state to state so you must be aware of where it is permitted. You must be able to show your ingenuity and desire to win.
We handle a substantial amount of municipal court and personal injury cases. If you have an overly difficult case and have problems handling it, your client may benefit if the case is referred to a more experienced attorney.
IMPORTANT LAWS MOST JUVENILES DON'T KNOW ABOUT
Assault: Any assault committed against any teacher, school board employee, school board member, or school administrator is an aggravated assault. NJSA 2C:12-1 et seq.
Graffiti: Penalties are increased for graffiti, and include driver's license loss for juveniles, P.L. 1995 c. 251. Amends NJSA 2C:17-3 (Criminal mischief and other statutes). In the case of a person who at the time of the imposition of sentence is less than 17 years of age, the period of the suspension of driving privileges authorized herein, including a suspension of the privilege of operating a motorized bicycle, shall commence on the day the sentence is imposed and shall run for a period of one year after the day the person reaches the age of 17 years. If the driving privilege of any person is under revocation, suspension, or postponement for a violation of any provision of this Title or Title 39 of the Revised Statutes at the time of any conviction or adjudication of delinquency for a violation of any offense defined in this section, the revocation, suspension, or postponement period imposed herein shall commence as of the date of termination of the existing revocation, suspension, or postponement. Any person convicted of criminal mischief involving graffiti may be required to pay to the owner monetary restitution and perform community service and remove graffiti.
Drugs: Sample Mandatory Penalties for Juvenile - Possession of Small Amounts of Marijuana: -Suspension of Driver's License: 2C:35-16 Six months to two years from date of sentence. -DEDR Penalty $500 required under NJSA 2C:35-15a. This $500 penalty is required even in juvenile cases, as required by statute. State in Intent of LM 22 NJ Super 88, (App. Div. 88) court denied 114 NJ 485
(1989) -Drug Lab Fee $50 2C:35-20a -VCCB $50 according to 2C:43-3.1a(2)(o) -Safe Streets - Fee due upon conviction, PTI or CD $75
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Kenneth Vercammen's Law office represents individuals charged with criminal, drug offenses, and serious traffic violations throughout New Jersey. Our office helps people with traffic/ municipal court tickets including drivers charged with Driving While Intoxicated, Refusal and Driving While Suspended.
Kenneth Vercammen was the NJ State Bar Municipal Court Attorney of the Year and past president of the Middlesex County Municipal Prosecutor's Association.
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