SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
Lawrence DeNike v. Michael Cupo (A-61-07)
Argued May 6, 2008 -- Decided September 24, 2008
RABNER, C.J., writing for a unanimous Court.
This appeal considers a sitting judge’s exploration of future employment opportunities with an attorneyappearing before the judge. In addition, the Court addresses generally the issue of post-retirement employment discussions by sitting judges.
Plaintiff Lawrence DeNike and defendant Michael Cupo were the sole members of Classic Mortgage, LLC (Classic). They operated the business for a number of years and eventually had a falling out. After they tried unsuccessfully to mediate their dispute, DeNike filed a lawsuit in July 2003 seeking to terminate and acquire Cupo’s interest in the company. Cupo counterclaimed. Both parties sought primarily the same relief: calculation of the fair value of Cupo’s interest so that DeNike could buy out Cupo’s interest.
The Honorable Gerald C. Escala, then Judge of the Superior Court and Presiding Judge of the Chancery Division, oversaw two-and-a-half years of hard-fought litigation in this matter. DeNike retained Thomas J. Herten of the law firm Herten Burstein to represent him. After a five-day bench trial in February and March 2005, the trial judge ruled that DeNike would acquire Cupo’s interest at fair market value. The court rejected each side’s valuation expert and appointed William Morrison to calculate the value of Cupo’s interest. The trial court then issued a supplemental decision directing DeNike to purchase Cupo’s interest in Classic for the net amount of $436,682.
As directed, DeNike submitted a proposed form of order on January 3, 2006; Cupo objected and submitted his own proposed order. On January 11, 2006, the court entered an order affirming that $436,682 was owed to Cupo. Both parties filed motions, and the court issued its second supplemental decision on January 20, 2006. In that ruling, the trial judge agreed with Cupo and noted that it erred regarding the expert’s calculations. As a result, Cupo was due $493,271. On January 24, 2006, one day after receiving a copy of the court’s latest decision, Herten, DeNike’s attorney, visited Judge Escala in chambers and asked about his retirement plans. Herten was aware of Judge Escala’s mandatory retirement date of February 24, 2006, and asked whether he would consider joining Herten’s law firm. The judge replied that he was open to considering the firm but wanted an independent “of counsel” type relationship. A day or two later, Herten, after speaking with his partners, advised the judge by telephone that it would probably take several days to analyze the projected overhead expenses and that he would get back to him.
Meanwhile on January 26, 2006, Cupo submitted a proposed from of order and promissory note as directed by Judge Escala’s January 20 second supplemental decision. Cupo raised other issues and again asked the court to address a $98,530 adjustment for taxes Cupo claimed he had already paid. Five days later, DeNike’s counsel objected and submitted an alternate proposed order and note. The dueling sets of forms had certain apparent differences. On February 1, 2006, Judge Escala adopted DeNike’s proposed form of order, modifying it in two respects, in effect denying Cupo’s motion to award the additional $98,530 adjustment for taxes.
Later the same day, after DeNike received a copy of the final judgment, Herten spoke with Judge Escala by telephone. Herten told the judge the firm had not completed its analysis but that whatever financial arrangement the firm proposed could be adjusted later to insure that it was satisfactory to both sides. Two days later, on February 3, 2006, Herten visited Judge Escala in his chambers, and the two agreed in principle to the judge joining the firm. They left the financial terms to be determined in the future. At a retirement dinner that night, Judge Escala announced his intention to join Herten Burstein upon retirement. He joined the firm on February 27, 2006.
After learning of Judge Escala’s announcement, Cupo moved to vacate the final judgment and sought a new trial. Cupo questioned the judge’s conduct in negotiating with the Herten firm and claimed the relationship could have influenced the outcome of the case. By this time, the case had been transferred from Bergen to Passaic County, where the Assignment Judge assigned the matter to himself. Before ruling on the motion to vacate, the Assignment Judge invited Cupo to seek reconsideration of any issue that might properly have been raised before Judge Escala. The Assignment Judge also granted Cupo the opportunity to cross-examine Herten and, if necessary, to question Judge Escala. Cupo declined both offers, and neither party sought reconsideration of the final judgment. The Assignment Judge denied Cupo’s motion to vacate the judgment, concluding, in part that although Judge Escala should have handled matters differently, all the court had left to do was the “ministerial act of formalizing in a written Order that which was decided” earlier. That is, at that point no substantive matters remained.
Cupo appealed and the Appellate Division affirmed the Assignment Judge’s denial of the motion to vacate judgment. The panel agreed with the Assignment Judge that Judge Escala should have handled matters differently, but concluded that “there was no actual appearance of impropriety” and that “[n]o person could reasonably believe that the judge had been biased, less than impartial, or unfair in conducting this trial.”
The Supreme Court granted Cupo’s petition for certification.
HELD: Judges must avoid actual conflicts as well as the appearance of impropriety to promote confidence in the integrity and impartiality of the Judiciary. Unfortunately, the negotiations between trial judge and lawyer in this case created an appearance of impropriety. Stated simply, the conduct here fell short of the high standards demanded of judges and fellow members of the legal profession and had the capacity to erode the public’s trust. Because any lesser remedy would allow reasonable doubts to linger about the fairness of the outcome of the case, the judgment of the Appellate Division is reversed and the matter is remanded for a new trial.
1. Certain core, ethical precepts provide the proper backdrop to this case. They include the bedrock principle articulated in Canon 1 of the Code of Judicial Conduct that “[a]n independent and honorable judiciary is indispensable to justice in our society.” Canon 2(A) requires that judges are to “act at all times in a manner that promotes public confidence,” and, as stated in the commentary, “must avoid all impropriety and appearance of impropriety.” Judges must avoid acting in a biased way or in a manner that may be perceived as partial. (Pp. 13-14)
2. Rule 1:18 obligates every judge to abide by the Rules of Professional Conduct and the Code of Judicial Conduct. Paraphrasing RPC 1.12(c), a judge shall not negotiate for employment with any person who is involved as a party or as an attorney for a party in a matter in which the judge is participating personally and substantially. There is no room for dispute that by overseeing the lengthy litigation in this matter, Judge Escala was participating “personally.” Also, although in certain instances entry of judgment may constitute a ministerial act that does not involve the exercise of discretion, the facts in this case do not support the application of that principle. After January 24, 2006, when Herten broached the topic of employment with Judge Escala, the parties were still at odds over the terms of the final order and the court was “substantially” engaged in the proceedings. As a result, the discussions between Judge Escala and Herten that began on January 24, 2006 violated the express terms of RPC 1.12(c). (Pp. 14-16)
3. Other rules that address the subject of disqualification reinforce the Court’s conclusion that it was error for the trial judge and plaintiff’s counsel to engage in employment discussions while the instant litigation was still pending. Among these are Canon 3(C)(1) of the Code of Judicial Conduct and Rule 1:12-1(f). Although the Court agrees with the Assignment Judge and the Appellate Division that no evidence in the record shows Judge Escala conducted the trial or post-trial proceedings in a biased or unfair way, the Court believes that a reasonable, fully informed person may have doubts about the judge’s impartiality. Accordingly, the Court finds that Judge Escala and Herten’s employment discussions on and after January 24, 2006 created an appearance of impropriety that required disqualification under Canon 3(C)(1) and Rule 1:12-1(f). This additional, alternative finding in no way undermines the Court’s conclusion regarding RPC 1.12(c), which prohibited negotiations outright in this case. That said, the Court finds no support in the record for Cupo’s claim that Judge Escala should have recused himself before the January 24, 2006 conversation. (Pp. 16-19)
4. While there is no evidence that the trial judge acted out of actual bias in favor of the Herten firm, the appearance of impropriety generated by the employment negotiations and the prospect of a financial relationship raises doubts about those decisions and the judge’s impartiality in general. Regrettably, from the standpoint of a knowledgeable, objective observer, the brief negotiations toward the end of the litigation could reasonably have infected all that occurred beforehand. As a result, a full retrial is required to restore public confidence in the integrity and impartiality of the proceedings, to resolve the dispute in particular, and to promote generally the administration of justice. (Pp. 19-21)
5. All New Jersey judges face mandatory retirement at age seventy and many choose to practice law in the private sector when they retire from public service, subject, of course, to the Guidelines on the Practice of Law by Retired Judges, Administrative Directive # 5-08 (March 24, 2008). The safest course for judges who wish to avoid overstepping any boundaries or raising an appearance of impropriety would be to wait until after retirement to seek employment. But our rules do not require that approach, and the Court recognizes that it can be impractical for various personal and professional reasons. Because of the importance and sensitivity of questions regarding postretirement employment discussions, some additional guidance may be helpful. First, judges may not discuss or negotiate for employment with any parties or attorneys involved in a matter in which the judge is participating personally and substantially. If the subject is raised in any fashion, judges should put a halt to the conversation at once, rebuff any offer, and disclose what occurred on the record. Second, judges who engage in retirement discussions while still on the bench – with attorneys who do not have a matter pending before them – must proceed in a way that minimizes the need for disqualification and upholds the integrity of the courts. To that end, judges should delay starting any discussions until shortly before their planned retirement, and should discuss postretirement employment opportunities with the fewest possible number of prospective employers. Third, judges must
disqualify themselves from matters involving parties or attorneys with whom they have discussed future
employment, whether or not those discussions lead to a future relationship. Fourth, judges should wait a reasonable period of time before discussing employment with an attorney or law firm that has appeared before the judge. In addition to these general guidelines, the Court refers the matter to the Professional Responsibility Rules Committee and the Advisory Committee on Extrajudicial Activities for their recommendations. (Pp. 21-25)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED for a new trial
consistent with this opinion.
JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE, RIVERA-SOTO, and HOENS join in
CHIEF JUSTICE RABNER’s opinion.
SUPREME COURT OF NEW JERSEY
A-61 September Term 2007
LAWRENCE DENIKE, Individually
and as a member of CLASSIC
MORTGAGE, LLC, a New Jersey
Limited Liability Company,
Plaintiff-Respondent,
v.
MICHAEL CUPO,
Defendant-Appellant.
Argued May 6, 2008 – Decided September 24, 2008
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 394 N.J. Super. 357 (2007).
James F. Keegan argued the cause for
appellant (Bendit Weinstock, attorneys; Mr.
Keegan, Barrett F. Kalb and Sherri Davis
Fowler, on the briefs).
Thomas J. Herten argued the cause for
respondent (Herten, Burstein, Sheridan,
Cevasco, Bottinelli, Litt & Harz, attorneys;
Mr. Herten and Daniel Y. Gielchinsky, on the
brief).
CHIEF JUSTICE RABNER delivered the opinion of the Court.
The Judiciary derives its authority from the State
Constitution but earns the public’s confidence through acts of unquestioned integrity. When that trust is shaken – even 2 slightly -- our system of justice falters. To guard against that outcome, we now address an area fraught with peril: a sitting judge’s exploration of future employment opportunities.
In this case, a lawyer approached a trial judge and asked if he would consider affiliating with the attorney’s firm upon retirement. In response, the judge began preliminary negotiations with the lawyer. Throughout the brief period of their discussions, the lawyer was handling a contested, pending matter before the judge.
That behavior plainly violated RPC 1.12(c), which directs that a judge “shall not negotiate for employment with any person who is involved as a party or as an attorney for a party in a matter in which the [judge] is participating personally and substantially.” The attorney should have waited a reasonable period of time after the case ended before broaching the subject of employment. Absent such a break in time, the trial judge should have halted discussions immediately, disclosed them on the record, and allowed the parties to evaluate the need for any further relief.
Judges must avoid actual conflicts as well as the
appearance of impropriety to promote confidence in the integrity and impartiality of the Judiciary. Unfortunately, the negotiations between trial judge and lawyer in this case created an appearance of impropriety. Stated simply, the conduct here fell short of the high standards demanded of judges and fellow members of the legal profession and had the capacity to erode the public’s trust.
Because any lesser remedy would allow reasonable doubts to linger about the fairness of the outcome of the case, we reverse the judgment of the Appellate Division and remand for a new trial.
I.
Plaintiff Lawrence DeNike and defendant Michael Cupo were the sole members of Classic Mortgage, LLC (Classic), a company that brokered residential mortgages. They operated the business for a number of years and eventually had a falling out. After they tried unsuccessfully to mediate their dispute, DeNike filed a lawsuit in July 2003 seeking to terminate and acquire Cupo’s interest in the company. Cupo counterclaimed. Both parties sought primarily the same relief: calculation of the fair value of Cupo’s interest in Classic so that DeNike could buy out Cupo’s interest.
The Honorable Gerald C. Escala, then Judge of the Superior Court and Presiding Judge of the Chancery Division, oversaw two and-a-half years of hard-fought litigation in this matter. DeNike retained Thomas J. Herten, of the law firm Herten, Burstein, Sheridan, Cevasco, Bottinelli, Litt & Harz, to represent him.
About two weeks after the lawsuit started, the trial judge issued an order directing that: (1) Cupo be deemed dissociated from Classic as of July 18, 2003; and (2) DeNike make a partial payment of $250,000 to Cupo without prejudice to a final ruling on the value of his interest in the company. The trial judge later set December 31, 2002 as the valuation date for calculating Cupo’s interest.
After a five-day bench trial in February and March 2005, the trial judge made various factual findings and ruled that DeNike would acquire Cupo’s interest at fair market value. The court rejected each side’s valuation expert and appointed William Morrison to calculate the value of Cupo’s interest. To do so, Morrison would have to determine the value of the business and make intricate adjustments for commissions received, overhead costs, monthly management fees due DeNike, and the $250,000 payment, among other items. Morrison would also have to recalculate and adjust the parties’ capital accounts.
Months later, in December 2005, Morrison testified about his findings, subject to cross-examination. The trial court then issued a supplemental decision directing DeNike to purchase Cupo’s interest in Classic for the net amount of $436,682.
As directed, DeNike submitted a proposed form of order on January 3, 2006; Cupo objected and submitted his own proposed order. Specifically, Cupo requested that judgment be entered against DeNike both individually and in his capacity as a member of Classic, jointly and severally; that DeNike not be permitted to pay in installments over five years; and that the court address whether it had considered a $98,530 adjustment for taxes Cupo reportedly paid, on monies he would no longer receive because of an adjustment to his capital account. Cupo also argued that the net amount due him was $493,271, not $436,682,relying on a different figure Morrison had used to adjust the
capital accounts.
On January 11, 2006, the court entered an order affirming that $436,682 was owed to Cupo. The following day, the court invited both parties to submit motions to address the error Cupo had raised about the net amount due as well as the proper payment schedule. Both parties filed motions, and the court issued its second supplemental decision on January 20, 2006. In that ruling, the trial judge agreed with Cupo and noted that it erred regarding the expert’s calculations.
As a result, Cupo was due $493,271. As for the manner of payment, the court ruled that a five-year payment period was appropriate, and that the obligation belonged to the company, not DeNike individually.
On January 24, 2006, one day after receiving a copy of the court’s latest decision, DeNike’s attorney, Thomas Herten, visited Judge Escala in chambers and asked about his retirement plans. (We rely on a certification Herten later submitted to the court for that fact and the related statements that follow.) Herten was aware of Judge Escala’s mandatory retirement date of February 24, 2006, and asked whether he would consider joining Herten’s law firm. The judge replied that he was open to considering the firm but wanted an independent “of counsel” type relationship. Because of the expenses involved in such a relationship, Herten responded that he would discuss the matter with his partners.
Herten met with his partners the next day, January 25, and they agreed to investigate the potential overhead costs of Judge Escala joining the firm. Either that same day or the next, Herten spoke with the judge by telephone and told him it would probably take several days to analyze the projected overhead expenses and get back to him.
Meanwhile on January 26, 2006, Cupo submitted a proposed form of order and promissory note as directed by the trial judge’s January 20 second supplemental decision. In a cover letter, Cupo also sought to raise two issues about the promissory note, which the second supplemental decision had addressed. First, while the decision and draft promissory notes provided for annual payments at the judgment rate set by Rule 4:42-11, Cupo argued for quarterly installments with interest at the prime rate, based on the company’s Operating Agreement.
Second, Cupo once again asked the court to address the $98,530 adjustment for taxes Cupo claimed he had already paid.
Five days later, on January 31, 2006, DeNike’s counsel
objected and submitted an alternate proposed order and note. Herten wrote that Cupo’s proposed forms “greatly exceed the scope of Your Honor’s Second Supplemental Decision dated January 20, 2006 and the terms of the [LLC’s] Operating Agreement.” In particular, Herten complained that “[v]arious terms of the proposed Promissory Note . . . are so unilateral that the proposed note would never be executed in a negotiated transaction.” According to Herten, those “terms are either not provided for in the Operating Agreement, or directly contrary to the terms of the Operating Agreement.” Herten asked the judge to exercise his “discretion to execute the enclosed Order”
instead.
The dueling sets of forms had certain apparent differences. Cupo’s proposed order allowed for the option of one lump sum payment or payment in installments, while DeNike’s provided for installment payments only. Regarding the promissory notes, among other points, Cupo’s called for a five percent late fee on payments more than fifteen days late, and DeNike’s did not; Cupo’s allowed the note to be accelerated and become immediately due and payable if any payment was thirty days late, while DeNike’s provided for written notice and an opportunity to cure a default within fifteen days; and Cupo’s allowed the note to be assigned, while DeNike’s expressly prohibited assignment.
On February 1, 2006, the judge adopted DeNike’s proposed form of order and modified it in two ways: (1) he directed Classic to deliver “a promissory note” to Cupo within ten days but declined to endorse either note the parties had submitted; and (2) he inserted a handwritten paragraph explaining that he set the interest rate at the judgment rate “to recognize the effect of the ‘advance’ payment of $250,000 . . . and the fact that the matter was litigated.” By signing the order, the court denied Cupo’s motion to award the additional amount of $98,530.
Later that same day, after receiving a copy of the final judgment, Herten spoke with Judge Escala by telephone. Herten told the judge the firm had not completed its analysis but that whatever financial arrangement the firm proposed could be adjusted later to insure that it was satisfactory to both sides.
Two days after, on February 3, 2006, Herten visited Judge Escala in his chambers, and the two agreed in principle to the judge joining the firm. They left the financial terms to be determined in the future. At a retirement dinner that night, Judge Escala announced his intention to join Herten Burstein upon retirement. He joined the firm on February 27, 2006.
After learning of Judge Escala’s announcement, Cupo moved to vacate the final judgment and sought a new trial. Cupo questioned the judge’s conduct in negotiating with the Herten firm and claimed the relationship could have influenced the outcome of the case. By this time, the case had been transferred from Bergen to Passaic County, where the Assignment Judge assigned the matter to himself.
Before ruling on the motion, the Assignment Judge invited Cupo to seek reconsideration of any issue that might properly have been raised before Judge Escala. The Assignment Judge also granted Cupo the opportunity to cross-examine Herten and, if necessary, to question Judge Escala. Cupo declined both offers, and neither party sought reconsideration of the final judgment.
The Assignment Judge recounted the lengthy history of the case and remarked to Herten that, “in retrospect, had you thought it out, you could have handled it a lot more delicately. . . . You created the situation, and now it snowballed into something that appears to have some impropriety to it.” The Assignment Judge added that it would have been a better exercise of discretion if Herten had waited to approach Judge Escala and if the judge had immediately disclosed his conversations with
Herten. “[H]indsight being 20/20,” the Assignment Judge
observed, the trial judge “should have done it differently.”
Nonetheless, the Assignment Judge found that the conduct did not violate any canon of ethics, noting that the only task remaining for the court after negotiations had begun was the “ministerial act of formalizing in a written Order that which was decided” earlier. As a result, the Assignment Judge denied Cupo’s motion to vacate the judgment.
Cupo appealed, and the Appellate Division affirmed the
Assignment Judge’s denial of the motion to vacate judgment.
DeNike v. Cupo, 394 N.J. Super. 357 (App. Div. 2007). Echoing the Assignment Judge, the panel found that Judge Escala “should not have begun negotiations with the Herten firm before completely concluding this matter, and minimally should have revealed to defendant the contact that was made by plaintiff’s attorney as soon as it occurred.” Id. at 376. However, the panel concluded that “there was no actual appearance of impropriety” and that “[n]o person could reasonably believe that the judge had been biased, less than impartial, or unfair in conducting this trial.” Id. at 373.
In making that determination, the Appellate Division
rejected Advisory Opinion No. 84 of the Committee on Codes of Conduct -- which provides that a “judge should not explore employment opportunities with a law firm which has appeared before the judge until the passage of a reasonable interval” -- finding it pertains only to federal judges. Id. at 373-74. The panel also distinguished Pepsico, Inc. v. McMillen, 764 F.2d 458 (7th Cir. 1985), because it involved employment negotiations that occurred prior to trial. DeNike, supra, 394 N.J. Super. At 374.
The Appellate Division also focused on Judge Escala’s
actions in the case after he started negotiating with Herten. The panel found that those negotiations occurred after the trial judge had issued his second supplemental decision and rendered all substantive decisions in the case. Id. at 374-76. The only task remaining for the judge, according to the panel, “was the ministerial act of adopting the form order drafted by plaintiff’s attorney with only a few minor editorial changes.”
Id. at 375. In doing so, the judge refused to endorse either form of promissory note before him. Id. at 374.
In the end, the panel agreed that Judge Escala “should have handled this situation differently,” but noted that “[i]f there is to be any . . . regulatory restriction [on post-retirement employment], it must come from the Supreme Court.” Id. at 375. In the remainder of its opinion, the Appellate Division addressed various other issues, affirming in part, reversing in part, and remanding in part. In short, the panel concluded that, pursuant to N.J.S.A. 42:2B-39, the correct valuation date was July 18, 2003, the date Cupo was deemed dissociated from Classic, and not December 31, 2002, DeNike, supra, 394 N.J. Super. at 381; that the trial court properly valued Cupo’s interest, id. at 382-83, 387; and that the trial court did not err in equalizing the parties’ capital accounts, id. at 384, denying Cupo a credit for taxes paid, id. at 385, denying prejudgment interest to Cupo, id. at 385-86, or allowing payments to be made over a period of five years, id. at 386.
The panel deferred to the trial judge’s credibility findings in reaching its decision. Id. at 383-84.
We granted Cupo’s petition for certification. 192 N.J. 598
(2007).
II.
Cupo argues that Judge Escala created an appearance of
impropriety by negotiating for employment with Herten; that
litigants and the public might be concerned that bias infected the court’s decisions; that the Appellate Division failed to distinguish between actual and apparent impropriety; that established principles of New Jersey law, including RPC 1.12(c), prohibited the trial judge from having employment discussions with Herten while the case was pending; and that after negotiations had begun, there were still unfinished tasks requiring the exercise of Judge Escala’s discretion. Cupo maintains that because the negotiations provide fair reason to question the trial judge’s objectivity and fairness, a new trial is warranted.
Conversely, DeNike argues that the Appellate Division
correctly found there was no appearance of impropriety; that the negotiations took place only after the court completed all substantive decisions; that the execution of a final judgment was but a ministerial act; that federal law and advisory opinions are inapplicable; that Cupo’s position is based on speculation and subjective beliefs; and that any limitations on post-retirement employment negotiations imposed by this Court should only be applied prospectively.
III.
Certain core, ethical precepts provide the proper backdrop to this case. They include the bedrock principle articulated in Canon 1 of the Code of Judicial Conduct that “[a]n independent and honorable judiciary is indispensable to justice in our society.” To that end, judges are required to maintain, enforce, and observe “high standards of conduct so that the integrity and independence of the judiciary may be preserved.” Ibid.
Judges are to “act at all times in a manner that promotes public confidence,” id. Canon 2(A), and “must avoid all impropriety and appearance of impropriety,” id. commentary on Canon 2 (emphasis added). Indeed, as this Court recognized nearly a half century ago, “‘justice must satisfy the appearance of justice.’” State v. Deutsch, 34 N.J. 190, 206 (1961)(quoting Offutt v. United States, 348 U.S. 11, 14, 75 S. Ct. 11, 13, 99 L. Ed. 11, 16 (1954)). That standard requires judges to “refrain . . . from sitting in any causes where their objectivity and impartiality may fairly be brought into question.” Ibid. In other words, judges must avoid acting in a biased way or in a manner that may be perceived as partial. To demand any less would invite questions about the impartiality of
the justice system and thereby “threaten[] the integrity of our judicial process.” State v. Tucker, 264 N.J. Super. 549, 554 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994).
A.
Rule 1:18 obligates every judge to abide by the Rules of Professional Conduct and the Code of Judicial Conduct. See also R. 1:14. We start with the Rules of Professional Conduct, which contain straightforward guidance applicable to this case. RPC 1.12(c) provides:
A lawyer shall not negotiate for employment
with any person who is involved as a party
or as an attorney for a party in a matter in
which the lawyer is participating personally
and substantially as a judge or other
adjudicative officer, arbitrator, mediator,
or other third-party neutral.
The rule is clearer still when its focus is placed only on
judges: A judge shall not negotiate for employment with any
person who is involved as a party or as an attorney for a party in a matter in which the judge is participating personally and substantially.
There is no room for dispute that by overseeing the lengthy litigation in this matter, Judge Escala was participating “personally.” DeNike argues that after employment negotiations began, the judge’s actions were purely ministerial, and by inference not “substantial.” All that remained, DeNike contends, was the non-discretionary act of entering a final judgment in the case.
To be sure, in certain instances, entry of judgment may constitute a ministerial act that does not involve the exercise of discretion. See Parker v. Parker, 128 N.J. Super. 230, 232- 33 (App. Div. 1974) (noting that entry of judgment was nondiscretionary when trial judge made definitive adjudication of controversy, granted parties divorce, and plaintiff died before judgment was formally entered); see also Fazilat v. Feldstein, 180 N.J. 74, 81-82 (2004) (commenting that trial court in Black
v. Walker, 295 N.J. Super. 244, 252 (App. Div. 1996), entered order against decedent’s estate “likely because all but the ministerial act of executing the order had been carried out” before his death).
Here, though, the facts do not support the principle DeNike advances. After January 24, 2006, when Herten broached the topic of employment with Judge Escala, the parties were still at odds over the terms of the final order. As detailed above in section I, the parties submitted dueling forms of order, each with its own, distinct promissory note. The notes differed as to late fees, default provisions, assignability, and other terms.
In addition, Cupo’s submission raised questions about
quarterly installments and the interest rate to be used.
Herten’s order was accompanied by a cover letter to Judge Escala dated January 31 -- a week after employment negotiations began - in which Herten asked the judge to reject Cupo’s submission and exercise “discretion” to execute Herten’s order.
Judge Escala did just that. He also explained in writing why he adopted the post-judgment rate of interest, which Cupo had challenged days earlier. While the trial judge chose not to endorse either promissory note, by doing so he effectively heeded Herten’s request not to use his adversary’s form. One could argue that entry of an uncontested form of judgment, after a final, definitive ruling in a case, does not constitute “substantial” participation at the time the order is entered. But when a court explains a prior ruling while deciding between competing submissions and positions, it is still “substantially” engaged. As a result, the discussions
between Judge Escala and Herten that began on January 24, 2006 violated the express terms of RPC 1.12(c).
B.
Other rules that address the subject of disqualification reinforce our conclusion that it was error for the trial judge and plaintiff’s counsel to engage in employment discussions while the instant litigation was still pending. Canon 3(C)(1) of the Code of Judicial Conduct provides that “[a] judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.”
Similarly, Rule 1:12-1(f) directs judges not to
sit in any matter “when there is any . . . reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so.”
We agree with the Assignment Judge and the Appellate
Division that no evidence in the record shows Judge Escala
conducted the trial or post-trial proceedings in a biased or unfair way. To be clear, though, “it is not necessary to prove actual prejudice on the part of the court” to establish an appearance of impropriety; an “objectively reasonable” belief that the proceedings were unfair is sufficient. State v. Marshall, 148 N.J. 89, 279, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).
Those principles give rise to the following standard:
Would a reasonable, fully informed person have doubts about the judge’s impartiality? We believe so for a number of reasons. First, based on the timing of the negotiations toward the close of the case, an objective observer might reasonably wonder whether Judge Escala favored the Herten firm either consciously or unconsciously. That concern would not be present had the negotiations started a reasonable period of time after the case ended. Because discussions began just days after the second supplemental decision, and in the midst of arguments over the shape of the final judgment, the public has reason to lack
confidence in the integrity of the process and its outcome.
Second, a judge simply cannot have a prospective financial relationship with one party and expect to persuade the other, or the public, that the court can nevertheless fairly assess the case. See Pepsico, supra, 764 F.2d at 461 (finding appearance of partiality requiring recusal when headhunter mistakenly contacted parties, on behalf of federal trial judge, before trial was to begin). Indeed, any sort of employment negotiations with a party -- “preliminary, tentative, indirect, unintentional, [or] ultimately unsuccessful” -- right before or during a pending matter, reasonably call into question a judge’s
impartiality. Ibid.
Instead of pursuing Herten’s entreaty, Judge Escala should have put an immediate halt to the first conversation and disclosed it on the record. DeNike, once again, argues that no reasonable person could question the proceedings because as of January 24, 2006, the case had been fully resolved with only ministerial acts left to be addressed. But, as discussed previously, the record reveals otherwise.
In addition, the timing of Herten’s approach -- so
soon after the court’s January 20 ruling, in a matter that
spanned two-and-one-half years of intensely fought litigation -- invites doubts about the trial judge’s partiality. See In re Continental Airlines Corp., 901 F.2d 1259, 1262 (5th Cir. 1990)(finding that close coupling of trial judge’s rulings – from May 8 through July 1, 1986 -- with party’s employment offer on July 2, 1986 and judge’s acceptance on July 29, 1986, created appearance issues warranting recusal).
Accordingly, we find that Judge Escala and Herten’s
employment discussions on and after January 24, 2006 created an appearance of impropriety that required disqualification under Canon 3(C)(1) and Rule 1:12-1(f). This additional, alternative finding in no way undermines our conclusion regarding RPC 1.12(c), which prohibited negotiations outright in this case.
That said, we find no support in the record for Cupo’s claim that Judge Escala should have recused himself before the January 24, 2006 conversation.
IV.
What, then, is the appropriate remedy? The Appellate
Division ordered a revised valuation of Cupo’s interest to take into account a new valuation date of July 18, 2003. That task alone requires additional expert analysis and testimony. But more is needed to restore public confidence in the outcome of this case.
During the course of the five-day trial and other
proceedings, Judge Escala was required to make various
credibility determinations and judgment calls. While there is no evidence that he acted out of actual bias in favor of the Herten firm, the appearance of impropriety generated by the employment negotiations and the prospect of a financial
relationship raises doubts about those decisions and the judge’s impartiality in general. Permitting Cupo to cross-examine Herten or question Judge Escala would not sufficiently erase those concerns.
Regrettably, from the standpoint of a knowledgeable,
objective observer, the brief negotiations toward the end of the litigation could reasonably have infected all that occurred beforehand. As a result, a full retrial is required to restore public confidence in the integrity and impartiality of the proceedings, to resolve the dispute in particular, and to promote generally the administration of justice. To shorten the proceedings and save resources at the retrial, the parties are encouraged to stipulate to the introduction of any evidence, documentary or testimonial, presented during the first trial.
DeNike contends that it would be unreasonable to apply new ethical restrictions to him retroactively. We do not agree. Because we rely on existing rules and prohibitions set forth in RPC 1.12(c), Canon 3(C)(1), and Rule 1:12-1(f), the relief ordered properly applies to this case.
V.
All New Jersey judges face mandatory retirement at age
seventy, see N.J. Const. art. VI, § 6, ¶ 3, and many choose to practice law in the private sector when they retire from public service, subject, of course, to the Guidelines on the Practice of Law by Retired Judges, Administrative Directive # 5-08 (March 24, 2008), available at www.judiciary.state.nj.us/directive/ 2008/dir_05_08.pdf. Because of the importance and sensitivity of questions regarding post-retirement employment discussions,
some additional guidance may be helpful.
1. To reiterate, under RPC 1.12(c), judges may not discuss or negotiate for employment with any parties or attorneys involved in a matter in which the judge is participating personally and substantially. Similarly, lawyers may not approach a judge to discuss post-retirement employment while such a matter is pending. If the subject is raised in any fashion, judges should put a halt to the conversation at once, rebuff any offer, and disclose what occurred on the record. The judge and all parties can then evaluate objectively whether any further relief is needed.
2. Judges who engage in retirement discussions while still on the bench -- with attorneys who do not have a matter pending before them -- must proceed in a way that minimizes the need for disqualification and upholds the integrity of the courts. Just as judges are required to manage their financial and business dealings to avoid conflicts and divest themselves of investments that “could reasonably . . . require frequent disqualification,” Code of Judicial Conduct, Canon 5(D)(3), they should proceed likewise with employment discussions. To that end, judges should delay starting any discussions until shortly before their planned retirement, and should discuss post-retirement employment opportunities with the fewest possible number of prospective employers. That approach would cause the least amount of disruption to litigants, other judges called upon to handle transferred cases, and the administration of the justice system. We encourage judges to consult with the Assignment Judge or other supervisory judicial officers in this regard.
3. To avoid raising reasonable questions about their
impartiality, judges must disqualify themselves from matters involving parties or attorneys with whom they have discussed future employment. See id. Canon 3(C)(1); Rule 1:12-1(f). For the sake of public confidence, that rule applies with equal force when discussions lead to a future relationship and when they do not.
4. Judges should wait a reasonable period of time before discussing employment with an attorney or law firm that has appeared before the judge. As in other areas, what is “reasonable” depends on the circumstances. At one end of the spectrum, an uncontested matter resolved swiftly by entry of a default judgment would not call for a lengthy interval of time.
Toward the other end, prolonged or particularly acrimonious litigation would caution in favor of a longer delay. Actions likely to result in continuing post-judgment matters would also warrant a lengthier intervening period of time. Obviously, the safest course for judges who wish to avoid overstepping any boundaries or raising an appearance of impropriety would be to wait until after retirement to seek employment. But our rules do not require that approach, and we recognize it can be impractical for various personal and professional reasons.
We also recognize that this important subject would benefit from further study and additional, practical guidance. Accordingly, we refer the matter to the
Professional Responsibility Rules Committee and the Advisory Committee on Extrajudicial Activities for their recommendations.
We ask the Committees to coordinate their efforts.
Advisory Opinion No. 84 of the federal Committee on Codes
of Conduct, entitled Judge’s Pursuit of Post-Judicial
Employment, provides a sensible starting point. That Opinion is binding on federal but not state judges. In reviewing the Opinion, the Committees should consider relevant differences between the federal and state judiciaries. For example, federal judges are appointed for life. U.S. Const. art. III, § 1. They may retire with full benefits upon reaching age sixty-five (or older, depending on years of service on the bench), or opt for senior status and continue serving indefinitely. 28 U.S.C.A. §
371(a)-(c). They may also receive compensation for law-related and extra-judicial activities, not exceeding fifteen percent of their salary in a calendar year. Code of Conduct for United States Judges, Canon 6; 5 U.S.C.A. Appendix, § 501(a).
In contrast, state judges in New Jersey face mandatory retirement at age seventy. N.J. Const. art. VI, § 6, ¶ 3. They may not receive any payment for quasi-judicial activities like teaching or writing about the law while serving as a judge. Code of Judicial Conduct, Canon 6; see also N.J. Const. art. VI, § 6, ¶ 6 (“[Judges] shall not, while in office, engage in . . . other
gainful pursuit.”). As a result, it is not at all uncommon for state judges to pursue employment when they approach mandatory retirement or at a younger age if they step down earlier. Those and other considerations may help inform the Committees’ work.
VI.
As the Assignment Judge aptly noted, the employment
discussions at the heart of this case were a “momentary slip” in
Judge Escala’s unblemished tenure. That brief episode should
not overshadow a lengthy, fine and dedicated career in public
25
service. But the standard of judicial conduct is necessarily
high “so that the integrity and independence of the judiciary
may be preserved.” State v. Clark, 191 N.J. 503, 513 (2007)
(internal quotation marks and citations omitted). The
fundamental need to maintain public confidence in the
impartiality of the judiciary compels the decision reached in
this case.
We reverse the judgment of the Appellate Division and
remand for a new trial consistent with this opinion.
JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE, RIVERA-SOTO, and
HOENS join in CHIEF JUSTICE RABNER’s opinion.
SUPREME COURT OF NEW JERSEY
NO. A-61 SEPTEMBER TERM 2007
ON CERTIFICATION TO Appellate Division, Superior Court
LAWRENCE DENIKE, Individually
And as a member of CLASSIC
MORTGAGE, LLC, a New Jersey
Limited Liability Company,
Plaintiff-Respondent,
v.
MICHAEL CUPO,
Defendant-Appellant.
DECIDED September 24, 2008
Chief Justice Rabner PRESIDING
OPINION BY Chief Justice Rabner
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
CHECKLIST REVERSE AND
REMAND
CHIEF JUSTICE
RABNER X
JUSTICE LONG X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE WALLACE X
JUSTICE RIVERA-SOTO X
JUSTICE HOENS X
TOTALS 7
Wednesday, September 24, 2008
2C:28-5. Tampering With Witnesses and Informants
Retaliation Against Them.
a. Tampering. A person commits an offense if, believing that an official proceeding or investigation is pending or about to be instituted, he knowingly attempts to induce or otherwise cause a witness or informant to:
(1) Testify or inform falsely;
(2) Withhold any testimony, information, document or thing;
(3) Elude legal process summoning him to testify or supply evidence; or
(4) Absent himself from any proceeding or investigation to which he has been legally summoned.
The offense is a crime of the second degree if the actor employs force or threat of force. Otherwise it is a crime of the third degree. Privileged communications may not be used as evidence in any prosecution for violations of paragraph (2), (3) or (4).
b. Retaliation against witness or informant. A person commits a crime of the fourth degree if he harms another by an unlawful act with purpose to retaliate for or on account of the service of another as a witness or informant.
c. Witness or informant taking bribe. A person commits a crime of the third degree if he solicits, accepts or agrees to accept any benefit in consideration of his doing any of the things specified in subsection a. (1) through (4) of this section.
L.1978, c.95; amended 1981,c.290,s.27; 1991,c.33,s.1.
2C:28-5.1. Witness, victim protective orders
If a court having jurisdiction under any criminal matter finds that the defendant in that criminal action or any other person connected in any way with the action has violated or is likely to violate N.J.S. 2C:28-5, N.J.S. 2C:29-3 or N.J.S. 2C:29-4 in regard to the pending offense, or that the defendant or other person has injured or intimidated or is threatening to injure or intimidate any witness in the pending offense or member of the witness' family with purpose to affect the testimony of the witness, the court may issue a protective order providing:
a. That the defendant or other person not violate any provision of N.J.S. 2C:28-5, N.J.S. 2C:29-3, or N.J.S. 2C:29-4;
b. That the defendant or other person maintain a prescribed geographic distance from any specified witness or victim;
c. That the defendant or other person have no communication with any specified witness or victim, except through an attorney under any reasonable restrictions which the court may impose.
L. 1985, c. 250, s. 1, eff. July 31, 1985.
2C:28-5.2. Penalties for violations
Any person violating any order made pursuant to section 1 of this act may be subject to any of the following penalties:
a. He may be charged with any substantive offense defined in N.J.S. 2C:28-5, N.J.S. 2C:29-3, or N.J.S. 2C:29-4 when violation of an order constitutes violation of any provision of those statutes;
b. He may be charged with contempt of the court that made the order. No finding of contempt shall be a bar to prosecution for a substantive offense; and any sentence for a conviction of contempt may be served consecutively to any sentence imposed for the underlying substantive offense. If the court does not impose a consecutive sentence, the court shall state on the record the reason for not imposing a consecutive sentence.
L. 1985, c. 250, s. 2, eff. July 31, 1985.
Consequences of a Criminal Guilty Plea
1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s)
2. Do you understand that if you plead guilty:
a. You will have a criminal record
b. You may go to Jail or Prison.
c. You will have to pay Fines and Court Costs.
3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail.
4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing.
5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution.
6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.
7. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.
8. You must wait 5-10 years to expunge a first offense. 2C:52-3
9. You could be put on Probation.
10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your driver's license for 6 months - 2years. You must pay a Law Enforcement Officers Training and Equipment Fund penalty of $30.
11. You may be required to do Community Service.
12. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty.
13. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction.
14. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation.
15. You lose the presumption against incarceration in future cases. 2C:44-1
16. You may lose your right to vote.
The defense of a person charged with a criminal offense is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of a criminal offense.
Jail for Crimes and Disorderly Conduct:
If someone pleads Guilty or is found Guilty of a criminal offense, the following is the statutory Prison/Jail terms.
NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years;
(2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years;
(3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years;
(4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months.
2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed:
a. (1) $200,000.00 when the conviction is of a crime of the first degree;
(2) $150,000.00 when the conviction is of a crime of the second degree;
b. (1) $15,000.00 when the conviction is of a crime of the third degree;
(2) $10,000.00 when the conviction is of a crime of the fourth degree;
c. $1,000.00, when the conviction is of a disorderly persons offense;
d. $500.00, when the conviction is of a petty disorderly persons offense;
If facing any criminal charge, retain an experienced attorney immediately to determine you rights and obligations to the court.
Christina Bruschetta "Editor of Criminal Article Blog"
a. Tampering. A person commits an offense if, believing that an official proceeding or investigation is pending or about to be instituted, he knowingly attempts to induce or otherwise cause a witness or informant to:
(1) Testify or inform falsely;
(2) Withhold any testimony, information, document or thing;
(3) Elude legal process summoning him to testify or supply evidence; or
(4) Absent himself from any proceeding or investigation to which he has been legally summoned.
The offense is a crime of the second degree if the actor employs force or threat of force. Otherwise it is a crime of the third degree. Privileged communications may not be used as evidence in any prosecution for violations of paragraph (2), (3) or (4).
b. Retaliation against witness or informant. A person commits a crime of the fourth degree if he harms another by an unlawful act with purpose to retaliate for or on account of the service of another as a witness or informant.
c. Witness or informant taking bribe. A person commits a crime of the third degree if he solicits, accepts or agrees to accept any benefit in consideration of his doing any of the things specified in subsection a. (1) through (4) of this section.
L.1978, c.95; amended 1981,c.290,s.27; 1991,c.33,s.1.
2C:28-5.1. Witness, victim protective orders
If a court having jurisdiction under any criminal matter finds that the defendant in that criminal action or any other person connected in any way with the action has violated or is likely to violate N.J.S. 2C:28-5, N.J.S. 2C:29-3 or N.J.S. 2C:29-4 in regard to the pending offense, or that the defendant or other person has injured or intimidated or is threatening to injure or intimidate any witness in the pending offense or member of the witness' family with purpose to affect the testimony of the witness, the court may issue a protective order providing:
a. That the defendant or other person not violate any provision of N.J.S. 2C:28-5, N.J.S. 2C:29-3, or N.J.S. 2C:29-4;
b. That the defendant or other person maintain a prescribed geographic distance from any specified witness or victim;
c. That the defendant or other person have no communication with any specified witness or victim, except through an attorney under any reasonable restrictions which the court may impose.
L. 1985, c. 250, s. 1, eff. July 31, 1985.
2C:28-5.2. Penalties for violations
Any person violating any order made pursuant to section 1 of this act may be subject to any of the following penalties:
a. He may be charged with any substantive offense defined in N.J.S. 2C:28-5, N.J.S. 2C:29-3, or N.J.S. 2C:29-4 when violation of an order constitutes violation of any provision of those statutes;
b. He may be charged with contempt of the court that made the order. No finding of contempt shall be a bar to prosecution for a substantive offense; and any sentence for a conviction of contempt may be served consecutively to any sentence imposed for the underlying substantive offense. If the court does not impose a consecutive sentence, the court shall state on the record the reason for not imposing a consecutive sentence.
L. 1985, c. 250, s. 2, eff. July 31, 1985.
Consequences of a Criminal Guilty Plea
1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s)
2. Do you understand that if you plead guilty:
a. You will have a criminal record
b. You may go to Jail or Prison.
c. You will have to pay Fines and Court Costs.
3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail.
4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing.
5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution.
6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.
7. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.
8. You must wait 5-10 years to expunge a first offense. 2C:52-3
9. You could be put on Probation.
10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your driver's license for 6 months - 2years. You must pay a Law Enforcement Officers Training and Equipment Fund penalty of $30.
11. You may be required to do Community Service.
12. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty.
13. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction.
14. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation.
15. You lose the presumption against incarceration in future cases. 2C:44-1
16. You may lose your right to vote.
The defense of a person charged with a criminal offense is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of a criminal offense.
Jail for Crimes and Disorderly Conduct:
If someone pleads Guilty or is found Guilty of a criminal offense, the following is the statutory Prison/Jail terms.
NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years;
(2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years;
(3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years;
(4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months.
2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed:
a. (1) $200,000.00 when the conviction is of a crime of the first degree;
(2) $150,000.00 when the conviction is of a crime of the second degree;
b. (1) $15,000.00 when the conviction is of a crime of the third degree;
(2) $10,000.00 when the conviction is of a crime of the fourth degree;
c. $1,000.00, when the conviction is of a disorderly persons offense;
d. $500.00, when the conviction is of a petty disorderly persons offense;
If facing any criminal charge, retain an experienced attorney immediately to determine you rights and obligations to the court.
Christina Bruschetta "Editor of Criminal Article Blog"
2C:28-4a&b False Reports to Law Enforcement Authority
a. Falsely incriminating another. A person who knowingly gives or causes to be given false information to any law enforcement officer with purpose to implicate another commits a crime of the fourth degree.
b. Fictitious reports. A person commits a disorderly persons offense if he:
(1) Reports or causes to be reported to law enforcement authorities an offense or other incident within their concern knowing that it did not occur; or
(2) Pretends to furnish or causes to be furnished such authorities with information relating to an offense or incident when he knows he has no information relating to such offense or incident.
L.1978, c. 95, s. 2C:28-4, eff. Sept. 1, 1979.]
Consequences of a Criminal Guilty Plea
1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s)
2. Do you understand that if you plead guilty:
a. You will have a criminal record
b. You may go to Jail or Prison.
c. You will have to pay Fines and Court Costs.
3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail.
4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing.
5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution.
6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.
7. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.
8. You must wait 5-10 years to expunge a first offense. 2C:52-3
9. You could be put on Probation.
10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your driver's license for 6 months - 2years. You must pay a Law Enforcement Officers Training and Equipment Fund penalty of $30.
11. You may be required to do Community Service.
12. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty.
13. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction.
14. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation.
15. You lose the presumption against incarceration in future cases. 2C:44-1
16. You may lose your right to vote.
The defense of a person charged with a criminal offense is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of a criminal offense.
Jail for Crimes and Disorderly Conduct:
If someone pleads Guilty or is found Guilty of a criminal offense, the following is the statutory Prison/Jail terms.
NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years;
(2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years;
(3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years;
(4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months.
2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed:
a. (1) $200,000.00 when the conviction is of a crime of the first degree;
(2) $150,000.00 when the conviction is of a crime of the second degree;
b. (1) $15,000.00 when the conviction is of a crime of the third degree;
(2) $10,000.00 when the conviction is of a crime of the fourth degree;
c. $1,000.00, when the conviction is of a disorderly persons offense;
d. $500.00, when the conviction is of a petty disorderly persons offense;
If facing any criminal charge, retain an experienced attorney immediately to determine you rights and obligations to the court
b. Fictitious reports. A person commits a disorderly persons offense if he:
(1) Reports or causes to be reported to law enforcement authorities an offense or other incident within their concern knowing that it did not occur; or
(2) Pretends to furnish or causes to be furnished such authorities with information relating to an offense or incident when he knows he has no information relating to such offense or incident.
L.1978, c. 95, s. 2C:28-4, eff. Sept. 1, 1979.]
Consequences of a Criminal Guilty Plea
1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s)
2. Do you understand that if you plead guilty:
a. You will have a criminal record
b. You may go to Jail or Prison.
c. You will have to pay Fines and Court Costs.
3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail.
4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing.
5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution.
6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.
7. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.
8. You must wait 5-10 years to expunge a first offense. 2C:52-3
9. You could be put on Probation.
10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your driver's license for 6 months - 2years. You must pay a Law Enforcement Officers Training and Equipment Fund penalty of $30.
11. You may be required to do Community Service.
12. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty.
13. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction.
14. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation.
15. You lose the presumption against incarceration in future cases. 2C:44-1
16. You may lose your right to vote.
The defense of a person charged with a criminal offense is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of a criminal offense.
Jail for Crimes and Disorderly Conduct:
If someone pleads Guilty or is found Guilty of a criminal offense, the following is the statutory Prison/Jail terms.
NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years;
(2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years;
(3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years;
(4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months.
2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed:
a. (1) $200,000.00 when the conviction is of a crime of the first degree;
(2) $150,000.00 when the conviction is of a crime of the second degree;
b. (1) $15,000.00 when the conviction is of a crime of the third degree;
(2) $10,000.00 when the conviction is of a crime of the fourth degree;
c. $1,000.00, when the conviction is of a disorderly persons offense;
d. $500.00, when the conviction is of a petty disorderly persons offense;
If facing any criminal charge, retain an experienced attorney immediately to determine you rights and obligations to the court
2C:27-1. Bribery
2C:27-1. Bribery
Definitions
In chapters 27 through 30, unless a different meaning plainly is required:
a. "Benefit" means gain or advantage, or anything regarded by the beneficiary as gain or advantage, including a pecuniary benefit or a benefit to any other person or entity in whose welfare he is interested;
b. "Government" includes any branch, subdivision or agency of the government of the State or any locality within it;
c. "Harm" means loss, disadvantage or injury, or anything so regarded by the person affected, including loss, disadvantage or injury to any other person or entity in whose welfare he is interested;
d. "Official proceeding" means a proceeding heard or which may be heard before any legislative, judicial, administrative or other governmental agency, arbitration proceeding, or official authorized to take evidence under oath, including any arbitrator, referee, hearing examiner, commissioner, notary or other person taking testimony or deposition in connection with any such proceeding;
e. "Party official" means a person who holds an elective or appointive post in a political party in the United States by virtue of which he directs or conducts, or participates in directing or conducting party affairs at any level of responsibility;
f. "Pecuniary benefit" is benefit in the form of money, property, commercial interests or anything else the primary significance of which is economic gain;
g. "Public servant" means any officer or employee of government, including legislators and judges, and any person participating as juror, advisor, consultant or otherwise, in performing a governmental function, but the term does not include witnesses;
h. "Administrative proceeding" means any proceeding, other than a judicial proceeding, the outcome of which is required to be based on a record or documentation prescribed by law, or in which law or regulation is particularized in application to individuals;
i. "Statement" means any representation, but includes a representation of opinion, belief or other state of mind only if the representation clearly relates to state of mind apart from or in addition to any facts which are the subject of the representation.
L.1978, c. 95, s. 2C:27-1, eff. Sept. 1, 1979. Amended by L.1979, c. 178, s. 47, eff. Sept. 1, 1979.
2C:27-2. Bribery in official and political matters
A person is guilty of bribery if he directly or indirectly offers, confers or agrees to confer upon another, or solicits, accepts or agrees to accept from another:
a. Any benefit as consideration for a decision, opinion, recommendation, vote or exercise of discretion of a public servant, party official or voter on any public issue or in any public election; or
b. Any benefit as consideration for a decision, vote, recommendation or exercise of official discretion in a judicial or administrative proceeding; or
c. Any benefit as consideration for a violation of an official duty of a public servant or party official; or
d. Any benefit as consideration for the performance of official duties.
For the purposes of this section "benefit as consideration" shall be deemed to mean any benefit not authorized by law.
It is no defense to prosecution under this section that a person whom the actor sought to influence was not qualified to act in the desired way whether because he had not yet assumed office, or lacked jurisdiction, or for any other reason.
In any prosecution under this section of an actor who offered, conferred or agreed to confer, or who solicited, accepted or agreed to accept a benefit, it is no defense that he did so as a result of conduct by another constituting theft by extortion or coercion or an attempt to commit either of those crimes.
Any offense proscribed by this section is a crime of the second degree. If the benefit offered, conferred, agreed to be conferred, solicited, accepted or agreed to be accepted is of the value of $200.00 or less, any offense proscribed by this section is a crime of the third degree.
Consequences of a Criminal Guilty Plea
1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s)
2. Do you understand that if you plead guilty:
a. You will have a criminal record
b. You may go to Jail or Prison.
c. You will have to pay Fines and Court Costs.
3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail.
4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing.
5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution.
6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.
7. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.
8. You must wait 5-10 years to expunge a first offense. 2C:52-3
9. You could be put on Probation.
10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your driver's license for 6 months - 2years. You must pay a Law Enforcement Officers Training and Equipment Fund penalty of $30.
11. You may be required to do Community Service.
12. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty.
13. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction.
14. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation.
15. You lose the presumption against incarceration in future cases. 2C:44-1
16. You may lose your right to vote.
The defense of a person charged with a criminal offense is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of a criminal offense.
Jail for Crimes and Disorderly Conduct:
If someone pleads Guilty or is found Guilty of a criminal offense, the following is the statutory Prison/Jail terms.
NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years;
(2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years;
(3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years;
(4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months.
2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed:
a. (1) $200,000.00 when the conviction is of a crime of the first degree;
(2) $150,000.00 when the conviction is of a crime of the second degree;
b. (1) $15,000.00 when the conviction is of a crime of the third degree;
(2) $10,000.00 when the conviction is of a crime of the fourth degree;
c. $1,000.00, when the conviction is of a disorderly persons offense;
d. $500.00, when the conviction is of a petty disorderly persons offense;
If facing any criminal charge, retain an experienced attorney immediately to determine you rights and obligations to the court.
Definitions
In chapters 27 through 30, unless a different meaning plainly is required:
a. "Benefit" means gain or advantage, or anything regarded by the beneficiary as gain or advantage, including a pecuniary benefit or a benefit to any other person or entity in whose welfare he is interested;
b. "Government" includes any branch, subdivision or agency of the government of the State or any locality within it;
c. "Harm" means loss, disadvantage or injury, or anything so regarded by the person affected, including loss, disadvantage or injury to any other person or entity in whose welfare he is interested;
d. "Official proceeding" means a proceeding heard or which may be heard before any legislative, judicial, administrative or other governmental agency, arbitration proceeding, or official authorized to take evidence under oath, including any arbitrator, referee, hearing examiner, commissioner, notary or other person taking testimony or deposition in connection with any such proceeding;
e. "Party official" means a person who holds an elective or appointive post in a political party in the United States by virtue of which he directs or conducts, or participates in directing or conducting party affairs at any level of responsibility;
f. "Pecuniary benefit" is benefit in the form of money, property, commercial interests or anything else the primary significance of which is economic gain;
g. "Public servant" means any officer or employee of government, including legislators and judges, and any person participating as juror, advisor, consultant or otherwise, in performing a governmental function, but the term does not include witnesses;
h. "Administrative proceeding" means any proceeding, other than a judicial proceeding, the outcome of which is required to be based on a record or documentation prescribed by law, or in which law or regulation is particularized in application to individuals;
i. "Statement" means any representation, but includes a representation of opinion, belief or other state of mind only if the representation clearly relates to state of mind apart from or in addition to any facts which are the subject of the representation.
L.1978, c. 95, s. 2C:27-1, eff. Sept. 1, 1979. Amended by L.1979, c. 178, s. 47, eff. Sept. 1, 1979.
2C:27-2. Bribery in official and political matters
A person is guilty of bribery if he directly or indirectly offers, confers or agrees to confer upon another, or solicits, accepts or agrees to accept from another:
a. Any benefit as consideration for a decision, opinion, recommendation, vote or exercise of discretion of a public servant, party official or voter on any public issue or in any public election; or
b. Any benefit as consideration for a decision, vote, recommendation or exercise of official discretion in a judicial or administrative proceeding; or
c. Any benefit as consideration for a violation of an official duty of a public servant or party official; or
d. Any benefit as consideration for the performance of official duties.
For the purposes of this section "benefit as consideration" shall be deemed to mean any benefit not authorized by law.
It is no defense to prosecution under this section that a person whom the actor sought to influence was not qualified to act in the desired way whether because he had not yet assumed office, or lacked jurisdiction, or for any other reason.
In any prosecution under this section of an actor who offered, conferred or agreed to confer, or who solicited, accepted or agreed to accept a benefit, it is no defense that he did so as a result of conduct by another constituting theft by extortion or coercion or an attempt to commit either of those crimes.
Any offense proscribed by this section is a crime of the second degree. If the benefit offered, conferred, agreed to be conferred, solicited, accepted or agreed to be accepted is of the value of $200.00 or less, any offense proscribed by this section is a crime of the third degree.
Consequences of a Criminal Guilty Plea
1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s)
2. Do you understand that if you plead guilty:
a. You will have a criminal record
b. You may go to Jail or Prison.
c. You will have to pay Fines and Court Costs.
3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail.
4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing.
5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution.
6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.
7. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.
8. You must wait 5-10 years to expunge a first offense. 2C:52-3
9. You could be put on Probation.
10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your driver's license for 6 months - 2years. You must pay a Law Enforcement Officers Training and Equipment Fund penalty of $30.
11. You may be required to do Community Service.
12. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty.
13. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction.
14. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation.
15. You lose the presumption against incarceration in future cases. 2C:44-1
16. You may lose your right to vote.
The defense of a person charged with a criminal offense is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of a criminal offense.
Jail for Crimes and Disorderly Conduct:
If someone pleads Guilty or is found Guilty of a criminal offense, the following is the statutory Prison/Jail terms.
NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years;
(2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years;
(3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years;
(4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months.
2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed:
a. (1) $200,000.00 when the conviction is of a crime of the first degree;
(2) $150,000.00 when the conviction is of a crime of the second degree;
b. (1) $15,000.00 when the conviction is of a crime of the third degree;
(2) $10,000.00 when the conviction is of a crime of the fourth degree;
c. $1,000.00, when the conviction is of a disorderly persons offense;
d. $500.00, when the conviction is of a petty disorderly persons offense;
If facing any criminal charge, retain an experienced attorney immediately to determine you rights and obligations to the court.
Domestic Violence Restraining Orders
by Kenneth A. Vercammen, Esq.
New Jersey domestic violence laws are very strict. If there are 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:
"...(1) An order restraining the defendant from subjecting the victim to domestic violence, as defined in this act.
(2) 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...
(3) An order providing for visitation...[ meaning the complainant obtains custody]
(4) 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...
(6) 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...
(7) An order restraining the defendant from making any communication likely to cause annoyance or alarm...
(8) 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...
(9) 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.
(10) 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..."
(11) 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.
(12) An Order requiring that a law enforcement officer accompany either party to the residence to supervise the removal of personal belongings.
(13) An Order granting any other appropriate relief for the plaintiff and minor children
(14) An Order that the defendant report to the intake office of the Family Part for monitoring
(15) An Order prohibiting the defendant from possessing any firearm or weapon
Caselaw protects victims. 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 "by 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.
The following is the NJ Court Rule on Restraining Orders;
Court Rule 5:7A. DOMESTIC VIOLENCE: RESTRAINING ORDERS
(a) Application for Temporary Restraining Order except as provided in paragraph (b) herein, an applicant for a temporary restraining order shall appear before a judge personally to testify upon the record or by sworn complaint submitted pursuant to N.J.S.A. 2C:25-28. If it appears that the applicant is in danger of domestic violence, the judge shall, upon consideration of the applicant's domestic violence affidavit, complaint or testimony, order emergency relief including ex parte relief, in the nature of a temporary restraining order as authorized by N.J.S.A. 2C:25-17 et seq.
(b) Issuance of Temporary Restraining Order by Electronic Communication. A judge may issue a temporary restraining order 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 or law enforcement officer assisting the applicant shall contemporaneously record such sworn oral testimony by means of a tape-recording device or stenographic machine if such are available; otherwise, adequate long hand 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 the application. This sworn testimony shall be deemed to be an affidavit for the purposes of issuance of a temporary restraining order. A temporary restraining order may issue if the judge is satisfied that exigent circumstances exist sufficient to excuse the failure of the applicant to appear personally and that sufficient grounds for granting the application have been shown. Upon issuance of the temporary restraining order, the judge shall memorialize the specific terms of the order and shall direct the law enforcement officer assisting the applicant to enter the judge's authorization verbatim on a form, or other appropriate paper, designated the duplicate original temporary restraining order. This order shall be deemed a temporary restraining order for the purpose of N.J.S.A. 2C:25-28. The judge shall direct the law enforcement officer assisting applicant to print the judge's name on the temporary restraining order. The judge shall also contemporaneously record factual determinations. Contemporaneously the judge shall issue a written confirmatory order and shall enter thereon the exact time of issuance of the duplicate order. In all other respects, the method of issuance and contents of the order shall be that required by sub-section (a) of this rule.
(c) Temporary Restraining Order. In court proceedings instituted under the Prevention of Domestic Violence Act of 1990, the judge shall issue a temporary restraining order when the applicant appears to be in danger of domestic violence. The order may be issued ex parte when necessary to protect the life, health, or well-being of a victim on whose behalf the relief is sought.
(d) Final Restraining Order. A final order restraining a defendant shall be issued only on a specific finding of domestic violence or on a stipulation by a defendant to the commission of an act or acts of domestic violence as defined by the statute.
(e) Procedure Upon Arrest Without a Warrant. Whenever a law enforcement officer has effected an arrest without a warrant on a criminal complaint brought for a violation otherwise defined as an offense under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 et seq., bail may be set and a complaint-warrant may be issued pursuant to the procedures prescribed in R. 3:4-1(b).
(f) Venue in Domestic Violence Proceedings. Venue in domestic violence actions shall be laid in the county where either of the parties resides, in the county where the domestic violence offense took place, or in the county where the victim of domestic violence is sheltered. If the action is not brought in a county of residence, venue shall be transferred to a county of residence for the final hearing unless the court orders the matter retained in the county where the complaint is filed for good cause shown.
The following is the NJ Statute on Restraining Orders and Domestic Violence Matters
2C:25-17. Short title
1. This act shall be known and may be cited as the "Prevention of Domestic Violence Act of 1991."
2C:25-18. Findings, declarations
2. The Legislature finds and declares that domestic violence is a serious crime against society; that there are thousands of persons in this State who are regularly beaten, tortured and in some cases even killed by their spouses or cohabitants; that a significant number of women who are assaulted are pregnant; that victims of domestic violence come from all social and economic backgrounds and ethnic groups; that there is a positive correlation between spousal abuse and child abuse; and that children, even when they are not themselves physically assaulted, suffer deep and lasting emotional effects from exposure to domestic violence. It is therefore, the intent of the Legislature to assure the victims of domestic violence the maximum protection from abuse the law can provide.
The Legislature further finds and declares that the health and welfare of some of its most vulnerable citizens, the elderly and disabled, are at risk because of incidents of reported and unreported domestic violence, abuse and neglect which are known to include acts which victimize the elderly and disabled emotionally, psychologically, physically and financially; because of age, disabilities or infirmities, this group of citizens frequently must rely on the aid and support of others; while the institutionalized elderly are protected under P.L. 1977, c.239 (C. 52:27G-1 et seq.), elderly and disabled adults in non institutionalized or community settings may find themselves victimized by family members or others upon whom they feel compelled to depend.
The Legislature further finds and declares that violence against the elderly and disabled, including criminal neglect of the elderly and disabled under section 1 of P.L. 1989, c.23 (C. 2C:24-8), must be recognized and addressed on an equal basis as violence against spouses and children in order to fulfill our responsibility as a society to protect those who are less able to protect themselves.
The Legislature further finds and declares that even though many of the existing criminal statutes are applicable to acts of domestic violence, previous societal attitudes concerning domestic violence have affected the response of our law enforcement and judicial systems, resulting in these acts receiving different treatment from similar crimes when they occur in a domestic context. The Legislature finds that battered adults presently experience substantial difficulty in gaining access to protection from the judicial system, particularly due to that system's inability to generate a prompt response in an emergency situation.
It is the intent of the Legislature to stress that the primary duty of a law enforcement officer when responding to a domestic violence call is to enforce the laws allegedly violated and to protect the victim. Further, it is the responsibility of the courts to protect victims of violence that occurs in a family or family-like setting by providing access to both emergent and long-term civil and criminal remedies and sanctions, and by ordering those remedies and sanctions that are available to assure the safety of the victims and the public. To that end, the Legislature encourages the training of all police and judicial personnel in the procedures and enforcement of this act, and about the social and psychological context in which domestic violence occurs; and it further encourages the broad application of the remedies available under this act in the civil and criminal courts of this State. It is further intended that the official response to domestic violence shall communicate the attitude that violent behavior will not be excused or tolerated, and shall make clear the fact that the existing criminal laws and civil remedies created under this act will be enforced without regard to the fact that the violence grows out of a domestic situation.
2C:25-21.1 Rules, regulations concerning weapons prohibitions and domestic violence.
The Attorney General may adopt, pursuant to the "Administrative Procedure Act," P.L. 1968, c.410 (C. 52:14B-1 et seq.), rules and regulations necessary and appropriate to implement this act.
2C:25-22. Immunity from civil liability
A law enforcement officer or a member of a domestic crisis team or any person who, in good faith, reports a possible incident of domestic violence to the police shall not be held liable in any civil action brought by any party for an arrest based on probable cause, enforcement in good faith of a court order, or any other act or omission in good faith under this act.
2C:25-23. Dissemination of notice to victim of domestic violence
7. A law enforcement officer shall disseminate and explain to the victim the following notice, which shall be written in both English and Spanish: "You have the right to go to court to get an order called a temporary restraining order, also called a TRO, which may protect you from more abuse by your attacker. The officer who handed you this card can tell you how to get a TRO.
The kinds of things a judge can order in a TRO may include:
(1) That your attacker is temporarily forbidden from entering the home you live in;
(2) That your attacker is temporarily forbidden from having contact with you or your relatives;
(3) That your attacker is temporarily forbidden from bothering you at work;
(4) That your attacker has to pay temporary child support or support for you;
(5) That you be given temporary custody of your children;
(6) That your attacker pay you back any money you have to spend for medical treatment or repairs because of the violence. There are other things the court can order, and the court clerk will explain the procedure to you and will help you fill out the papers for a TRO.
You also have the right to file a criminal complaint against your attacker. The police officer who gave you this paper will tell you how to file a criminal complaint.
On weekends, holidays and other times when the courts are closed, you still have a right to get a TRO. The police officer who gave you this paper can help you get in touch with a judge who can give you a TRO."
2C:25-24 Domestic violence offense reports.
8. a. It shall be the duty of a law enforcement officer who responds to a domestic violence call to complete a domestic violence offense report. All information contained in the domestic violence offense report shall be forwarded to the appropriate county bureau of identification and to the State bureau of records and identification in the Division of State Police in the Department of Law and Public Safety. A copy of the domestic violence offense report shall be forwarded to the municipal court where the offense was committed unless the case has been transferred to the Superior Court.
b. The domestic violence offense report shall be on a form prescribed by the supervisor of the State bureau of records and identification which shall include, but not be limited to, the following information: (1)The relationship of the parties;
(2)The sex of the parties;
(3)The time and date of the incident;
(4)The number of domestic violence calls investigated;
(5)Whether children were involved, or whether the alleged act of domestic violence had been committed in the presence of children;
(6)The type and extent of abuse;
(7)The number and type of weapons involved;
(8)The action taken by the law enforcement officer;
(9)The existence of any prior court orders issued pursuant to this act concerning the parties;
(10) The number of domestic violence calls alleging a violation of a domestic violence restraining order; (11) The number of arrests for a violation of a domestic violence order; and
(12) Any other data that may be necessary for a complete analysis of all circumstances leading to the alleged incident of domestic violence.
Consequences of a Criminal Guilty Plea
1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s)
2. Do you understand that if you plead guilty:
a. You will have a criminal record
b. You may go to Jail or Prison.
c. You will have to pay Fines and Court Costs.
3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail.
4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing.
5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution.
6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.
7. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.
8. You must wait 5-10 years to expunge a first offense. 2C:52-3
9. You could be put on Probation.
10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your driver's license for 6 months - 2years. You must pay a Law Enforcement Officers Training and Equipment Fund penalty of $30.
11. You may be required to do Community Service.
12. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty.
13. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction.
14. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation.
15. You lose the presumption against incarceration in future cases. 2C:44-1
16. You may lose your right to vote.
The defense of a person charged with a criminal offense is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of a criminal offense.
Jail for Crimes and Disorderly Conduct:
If someone pleads Guilty or is found Guilty of a criminal offense, the following is the statutory Prison/Jail terms.
NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years;
(2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years;
(3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years;
(4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months.
2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed:
a. (1) $200,000.00 when the conviction is of a crime of the first degree;
(2) $150,000.00 when the conviction is of a crime of the second degree;
b. (1) $15,000.00 when the conviction is of a crime of the third degree;
(2) $10,000.00 when the conviction is of a crime of the fourth degree;
c. $1,000.00, when the conviction is of a disorderly persons offense;
d. $500.00, when the conviction is of a petty disorderly persons offense;
If facing any criminal charge, retain an experienced attorney immediately to determine you rights and obligations to the court.
New Jersey domestic violence laws are very strict. If there are 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:
"...(1) An order restraining the defendant from subjecting the victim to domestic violence, as defined in this act.
(2) 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...
(3) An order providing for visitation...[ meaning the complainant obtains custody]
(4) 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...
(6) 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...
(7) An order restraining the defendant from making any communication likely to cause annoyance or alarm...
(8) 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...
(9) 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.
(10) 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..."
(11) 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.
(12) An Order requiring that a law enforcement officer accompany either party to the residence to supervise the removal of personal belongings.
(13) An Order granting any other appropriate relief for the plaintiff and minor children
(14) An Order that the defendant report to the intake office of the Family Part for monitoring
(15) An Order prohibiting the defendant from possessing any firearm or weapon
Caselaw protects victims. 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 "by 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.
The following is the NJ Court Rule on Restraining Orders;
Court Rule 5:7A. DOMESTIC VIOLENCE: RESTRAINING ORDERS
(a) Application for Temporary Restraining Order except as provided in paragraph (b) herein, an applicant for a temporary restraining order shall appear before a judge personally to testify upon the record or by sworn complaint submitted pursuant to N.J.S.A. 2C:25-28. If it appears that the applicant is in danger of domestic violence, the judge shall, upon consideration of the applicant's domestic violence affidavit, complaint or testimony, order emergency relief including ex parte relief, in the nature of a temporary restraining order as authorized by N.J.S.A. 2C:25-17 et seq.
(b) Issuance of Temporary Restraining Order by Electronic Communication. A judge may issue a temporary restraining order 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 or law enforcement officer assisting the applicant shall contemporaneously record such sworn oral testimony by means of a tape-recording device or stenographic machine if such are available; otherwise, adequate long hand 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 the application. This sworn testimony shall be deemed to be an affidavit for the purposes of issuance of a temporary restraining order. A temporary restraining order may issue if the judge is satisfied that exigent circumstances exist sufficient to excuse the failure of the applicant to appear personally and that sufficient grounds for granting the application have been shown. Upon issuance of the temporary restraining order, the judge shall memorialize the specific terms of the order and shall direct the law enforcement officer assisting the applicant to enter the judge's authorization verbatim on a form, or other appropriate paper, designated the duplicate original temporary restraining order. This order shall be deemed a temporary restraining order for the purpose of N.J.S.A. 2C:25-28. The judge shall direct the law enforcement officer assisting applicant to print the judge's name on the temporary restraining order. The judge shall also contemporaneously record factual determinations. Contemporaneously the judge shall issue a written confirmatory order and shall enter thereon the exact time of issuance of the duplicate order. In all other respects, the method of issuance and contents of the order shall be that required by sub-section (a) of this rule.
(c) Temporary Restraining Order. In court proceedings instituted under the Prevention of Domestic Violence Act of 1990, the judge shall issue a temporary restraining order when the applicant appears to be in danger of domestic violence. The order may be issued ex parte when necessary to protect the life, health, or well-being of a victim on whose behalf the relief is sought.
(d) Final Restraining Order. A final order restraining a defendant shall be issued only on a specific finding of domestic violence or on a stipulation by a defendant to the commission of an act or acts of domestic violence as defined by the statute.
(e) Procedure Upon Arrest Without a Warrant. Whenever a law enforcement officer has effected an arrest without a warrant on a criminal complaint brought for a violation otherwise defined as an offense under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 et seq., bail may be set and a complaint-warrant may be issued pursuant to the procedures prescribed in R. 3:4-1(b).
(f) Venue in Domestic Violence Proceedings. Venue in domestic violence actions shall be laid in the county where either of the parties resides, in the county where the domestic violence offense took place, or in the county where the victim of domestic violence is sheltered. If the action is not brought in a county of residence, venue shall be transferred to a county of residence for the final hearing unless the court orders the matter retained in the county where the complaint is filed for good cause shown.
The following is the NJ Statute on Restraining Orders and Domestic Violence Matters
2C:25-17. Short title
1. This act shall be known and may be cited as the "Prevention of Domestic Violence Act of 1991."
2C:25-18. Findings, declarations
2. The Legislature finds and declares that domestic violence is a serious crime against society; that there are thousands of persons in this State who are regularly beaten, tortured and in some cases even killed by their spouses or cohabitants; that a significant number of women who are assaulted are pregnant; that victims of domestic violence come from all social and economic backgrounds and ethnic groups; that there is a positive correlation between spousal abuse and child abuse; and that children, even when they are not themselves physically assaulted, suffer deep and lasting emotional effects from exposure to domestic violence. It is therefore, the intent of the Legislature to assure the victims of domestic violence the maximum protection from abuse the law can provide.
The Legislature further finds and declares that the health and welfare of some of its most vulnerable citizens, the elderly and disabled, are at risk because of incidents of reported and unreported domestic violence, abuse and neglect which are known to include acts which victimize the elderly and disabled emotionally, psychologically, physically and financially; because of age, disabilities or infirmities, this group of citizens frequently must rely on the aid and support of others; while the institutionalized elderly are protected under P.L. 1977, c.239 (C. 52:27G-1 et seq.), elderly and disabled adults in non institutionalized or community settings may find themselves victimized by family members or others upon whom they feel compelled to depend.
The Legislature further finds and declares that violence against the elderly and disabled, including criminal neglect of the elderly and disabled under section 1 of P.L. 1989, c.23 (C. 2C:24-8), must be recognized and addressed on an equal basis as violence against spouses and children in order to fulfill our responsibility as a society to protect those who are less able to protect themselves.
The Legislature further finds and declares that even though many of the existing criminal statutes are applicable to acts of domestic violence, previous societal attitudes concerning domestic violence have affected the response of our law enforcement and judicial systems, resulting in these acts receiving different treatment from similar crimes when they occur in a domestic context. The Legislature finds that battered adults presently experience substantial difficulty in gaining access to protection from the judicial system, particularly due to that system's inability to generate a prompt response in an emergency situation.
It is the intent of the Legislature to stress that the primary duty of a law enforcement officer when responding to a domestic violence call is to enforce the laws allegedly violated and to protect the victim. Further, it is the responsibility of the courts to protect victims of violence that occurs in a family or family-like setting by providing access to both emergent and long-term civil and criminal remedies and sanctions, and by ordering those remedies and sanctions that are available to assure the safety of the victims and the public. To that end, the Legislature encourages the training of all police and judicial personnel in the procedures and enforcement of this act, and about the social and psychological context in which domestic violence occurs; and it further encourages the broad application of the remedies available under this act in the civil and criminal courts of this State. It is further intended that the official response to domestic violence shall communicate the attitude that violent behavior will not be excused or tolerated, and shall make clear the fact that the existing criminal laws and civil remedies created under this act will be enforced without regard to the fact that the violence grows out of a domestic situation.
2C:25-21.1 Rules, regulations concerning weapons prohibitions and domestic violence.
The Attorney General may adopt, pursuant to the "Administrative Procedure Act," P.L. 1968, c.410 (C. 52:14B-1 et seq.), rules and regulations necessary and appropriate to implement this act.
2C:25-22. Immunity from civil liability
A law enforcement officer or a member of a domestic crisis team or any person who, in good faith, reports a possible incident of domestic violence to the police shall not be held liable in any civil action brought by any party for an arrest based on probable cause, enforcement in good faith of a court order, or any other act or omission in good faith under this act.
2C:25-23. Dissemination of notice to victim of domestic violence
7. A law enforcement officer shall disseminate and explain to the victim the following notice, which shall be written in both English and Spanish: "You have the right to go to court to get an order called a temporary restraining order, also called a TRO, which may protect you from more abuse by your attacker. The officer who handed you this card can tell you how to get a TRO.
The kinds of things a judge can order in a TRO may include:
(1) That your attacker is temporarily forbidden from entering the home you live in;
(2) That your attacker is temporarily forbidden from having contact with you or your relatives;
(3) That your attacker is temporarily forbidden from bothering you at work;
(4) That your attacker has to pay temporary child support or support for you;
(5) That you be given temporary custody of your children;
(6) That your attacker pay you back any money you have to spend for medical treatment or repairs because of the violence. There are other things the court can order, and the court clerk will explain the procedure to you and will help you fill out the papers for a TRO.
You also have the right to file a criminal complaint against your attacker. The police officer who gave you this paper will tell you how to file a criminal complaint.
On weekends, holidays and other times when the courts are closed, you still have a right to get a TRO. The police officer who gave you this paper can help you get in touch with a judge who can give you a TRO."
2C:25-24 Domestic violence offense reports.
8. a. It shall be the duty of a law enforcement officer who responds to a domestic violence call to complete a domestic violence offense report. All information contained in the domestic violence offense report shall be forwarded to the appropriate county bureau of identification and to the State bureau of records and identification in the Division of State Police in the Department of Law and Public Safety. A copy of the domestic violence offense report shall be forwarded to the municipal court where the offense was committed unless the case has been transferred to the Superior Court.
b. The domestic violence offense report shall be on a form prescribed by the supervisor of the State bureau of records and identification which shall include, but not be limited to, the following information: (1)The relationship of the parties;
(2)The sex of the parties;
(3)The time and date of the incident;
(4)The number of domestic violence calls investigated;
(5)Whether children were involved, or whether the alleged act of domestic violence had been committed in the presence of children;
(6)The type and extent of abuse;
(7)The number and type of weapons involved;
(8)The action taken by the law enforcement officer;
(9)The existence of any prior court orders issued pursuant to this act concerning the parties;
(10) The number of domestic violence calls alleging a violation of a domestic violence restraining order; (11) The number of arrests for a violation of a domestic violence order; and
(12) Any other data that may be necessary for a complete analysis of all circumstances leading to the alleged incident of domestic violence.
Consequences of a Criminal Guilty Plea
1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s)
2. Do you understand that if you plead guilty:
a. You will have a criminal record
b. You may go to Jail or Prison.
c. You will have to pay Fines and Court Costs.
3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail.
4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing.
5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution.
6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.
7. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.
8. You must wait 5-10 years to expunge a first offense. 2C:52-3
9. You could be put on Probation.
10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your driver's license for 6 months - 2years. You must pay a Law Enforcement Officers Training and Equipment Fund penalty of $30.
11. You may be required to do Community Service.
12. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty.
13. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction.
14. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation.
15. You lose the presumption against incarceration in future cases. 2C:44-1
16. You may lose your right to vote.
The defense of a person charged with a criminal offense is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of a criminal offense.
Jail for Crimes and Disorderly Conduct:
If someone pleads Guilty or is found Guilty of a criminal offense, the following is the statutory Prison/Jail terms.
NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years;
(2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years;
(3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years;
(4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months.
2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed:
a. (1) $200,000.00 when the conviction is of a crime of the first degree;
(2) $150,000.00 when the conviction is of a crime of the second degree;
b. (1) $15,000.00 when the conviction is of a crime of the third degree;
(2) $10,000.00 when the conviction is of a crime of the fourth degree;
c. $1,000.00, when the conviction is of a disorderly persons offense;
d. $500.00, when the conviction is of a petty disorderly persons offense;
If facing any criminal charge, retain an experienced attorney immediately to determine you rights and obligations to the court.
2C:24-9 Use of 17-year-old or younger to commit criminal offense; crime.
2C:24-9 Use of 17-year-old or younger to commit criminal offense; crime.
1. a. Except as provided in P.L.1991, c.81 (C.2C:20-17) and N.J.S.2C:35-6, any person who is at least 18 years of age who knowingly uses, solicits, directs, hires, employs or conspires with a person who is in fact 17 years of age or younger to commit a criminal offense is guilty of a crime.
b. An offense under this section constitutes a crime of the fourth degree if the underlying offense is a disorderly persons offense. Otherwise, an offense under this section shall be classified one degree higher than the underlying offense.
c. Notwithstanding the provisions of N.J.S.2C:1-8, a conviction under this section shall not merge with a conviction for the underlying offense. Nor shall a conviction for the underlying offense merge with a conviction under this section. Nothing contained in this act shall prohibit the court from imposing an extended term of imprisonment pursuant to 2C:43-7; nor shall this be construed to preclude or limit a prosecution or conviction of any person for conspiracy under N.J.S.2C:5-2, or any prosecution or conviction for any offense.
d.It shall be no defense to a prosecution under this act that the actor mistakenly believed that the person which the actor used, solicited, directed, hired or employed was 18 years of age or older, even if such mistaken belief was reasonable.
Consequences of a Criminal Guilty Plea
1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s)
2. Do you understand that if you plead guilty:
a. You will have a criminal record
b. You may go to Jail or Prison.
c. You will have to pay Fines and Court Costs.
3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail.
4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing.
5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution.
6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.
7. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.
8. You must wait 5-10 years to expunge a first offense. 2C:52-3
9. You could be put on Probation.
10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your driver's license for 6 months - 2years. You must pay a Law Enforcement Officers Training and Equipment Fund penalty of $30.
11. You may be required to do Community Service.
12. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty.
13. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction.
14. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation.
15. You lose the presumption against incarceration in future cases. 2C:44-1
16. You may lose your right to vote.
The defense of a person charged with a criminal offense is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of a criminal offense.
Jail for Crimes and Disorderly Conduct:
If someone pleads Guilty or is found Guilty of a criminal offense, the following is the statutory Prison/Jail terms.
NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years;
(2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years;
(3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years;
(4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months.
2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed:
a. (1) $200,000.00 when the conviction is of a crime of the first degree;
(2) $150,000.00 when the conviction is of a crime of the second degree;
b. (1) $15,000.00 when the conviction is of a crime of the third degree;
(2) $10,000.00 when the conviction is of a crime of the fourth degree;
c. $1,000.00, when the conviction is of a disorderly persons offense;
d. $500.00, when the conviction is of a petty disorderly persons offense;
If facing any criminal charge, retain an experienced attorney immediately to determine you rights and obligations to the court.
1. a. Except as provided in P.L.1991, c.81 (C.2C:20-17) and N.J.S.2C:35-6, any person who is at least 18 years of age who knowingly uses, solicits, directs, hires, employs or conspires with a person who is in fact 17 years of age or younger to commit a criminal offense is guilty of a crime.
b. An offense under this section constitutes a crime of the fourth degree if the underlying offense is a disorderly persons offense. Otherwise, an offense under this section shall be classified one degree higher than the underlying offense.
c. Notwithstanding the provisions of N.J.S.2C:1-8, a conviction under this section shall not merge with a conviction for the underlying offense. Nor shall a conviction for the underlying offense merge with a conviction under this section. Nothing contained in this act shall prohibit the court from imposing an extended term of imprisonment pursuant to 2C:43-7; nor shall this be construed to preclude or limit a prosecution or conviction of any person for conspiracy under N.J.S.2C:5-2, or any prosecution or conviction for any offense.
d.It shall be no defense to a prosecution under this act that the actor mistakenly believed that the person which the actor used, solicited, directed, hired or employed was 18 years of age or older, even if such mistaken belief was reasonable.
Consequences of a Criminal Guilty Plea
1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s)
2. Do you understand that if you plead guilty:
a. You will have a criminal record
b. You may go to Jail or Prison.
c. You will have to pay Fines and Court Costs.
3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail.
4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing.
5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution.
6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.
7. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.
8. You must wait 5-10 years to expunge a first offense. 2C:52-3
9. You could be put on Probation.
10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your driver's license for 6 months - 2years. You must pay a Law Enforcement Officers Training and Equipment Fund penalty of $30.
11. You may be required to do Community Service.
12. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty.
13. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction.
14. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation.
15. You lose the presumption against incarceration in future cases. 2C:44-1
16. You may lose your right to vote.
The defense of a person charged with a criminal offense is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of a criminal offense.
Jail for Crimes and Disorderly Conduct:
If someone pleads Guilty or is found Guilty of a criminal offense, the following is the statutory Prison/Jail terms.
NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years;
(2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years;
(3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years;
(4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months.
2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed:
a. (1) $200,000.00 when the conviction is of a crime of the first degree;
(2) $150,000.00 when the conviction is of a crime of the second degree;
b. (1) $15,000.00 when the conviction is of a crime of the third degree;
(2) $10,000.00 when the conviction is of a crime of the fourth degree;
c. $1,000.00, when the conviction is of a disorderly persons offense;
d. $500.00, when the conviction is of a petty disorderly persons offense;
If facing any criminal charge, retain an experienced attorney immediately to determine you rights and obligations to the court.
2C:24-7. Endangering the welfare of an incompetent person
A person is guilty of a disorderly persons offense when he knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a person who is unable to care for himself because of mental disease or defect.
L.1978, c. 95, s. 2C:24-7, eff. Sept. 1, 1979.
2C:24-8. Abandonment, neglect of elderly person, disabled adult; third degree crime
1. a. A person having a legal duty to care for or who has assumed continuing responsibility for the care of a person 60 years of age or older or a disabled adult, who abandons the elderly person or disabled adult or unreasonably neglects to do or fails to permit to be done any act necessary for the physical or mental health of the elderly person or disabled adult, is guilty of a crime of the third degree. For purposes of this section "abandon" means the willful desertion or forsaking of an elderly person or disabled adult.
b.A person shall not be considered to commit an offense under this section for the sole reason that he provides or permits to be provided nonmedical remedial treatment by spiritual means through prayer alone in lieu of medical care, in accordance with the tenets and practices of the elderly person's or disabled adult's established religious tradition, to an elderly person or disabled adult to whom he has a legal duty to care for or has assumed responsibility for the care of.
c.Nothing in this section shall be construed to preclude or limit the prosecution or conviction for any other offense defined in this code or in any other law of this State.
Consequences of a Criminal Guilty Plea
1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s)
2. Do you understand that if you plead guilty:
a. You will have a criminal record
b. You may go to Jail or Prison.
c. You will have to pay Fines and Court Costs.
3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail.
4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing.
5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution.
6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.
7. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.
8. You must wait 5-10 years to expunge a first offense. 2C:52-3
9. You could be put on Probation.
10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your driver's license for 6 months - 2years. You must pay a Law Enforcement Officers Training and Equipment Fund penalty of $30.
11. You may be required to do Community Service.
12. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty.
13. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction.
14. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation.
15. You lose the presumption against incarceration in future cases. 2C:44-1
16. You may lose your right to vote.
The defense of a person charged with a criminal offense is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of a criminal offense.
Jail for Crimes and Disorderly Conduct:
If someone pleads Guilty or is found Guilty of a criminal offense, the following is the statutory Prison/Jail terms.
NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years;
(2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years;
(3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years;
(4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months.
2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed:
a. (1) $200,000.00 when the conviction is of a crime of the first degree;
(2) $150,000.00 when the conviction is of a crime of the second degree;
b. (1) $15,000.00 when the conviction is of a crime of the third degree;
(2) $10,000.00 when the conviction is of a crime of the fourth degree;
c. $1,000.00, when the conviction is of a disorderly persons offense;
d. $500.00, when the conviction is of a petty disorderly persons offense;
If facing any criminal charge, retain an experienced attorney immediately to determine you rights and obligations to the court.
L.1978, c. 95, s. 2C:24-7, eff. Sept. 1, 1979.
2C:24-8. Abandonment, neglect of elderly person, disabled adult; third degree crime
1. a. A person having a legal duty to care for or who has assumed continuing responsibility for the care of a person 60 years of age or older or a disabled adult, who abandons the elderly person or disabled adult or unreasonably neglects to do or fails to permit to be done any act necessary for the physical or mental health of the elderly person or disabled adult, is guilty of a crime of the third degree. For purposes of this section "abandon" means the willful desertion or forsaking of an elderly person or disabled adult.
b.A person shall not be considered to commit an offense under this section for the sole reason that he provides or permits to be provided nonmedical remedial treatment by spiritual means through prayer alone in lieu of medical care, in accordance with the tenets and practices of the elderly person's or disabled adult's established religious tradition, to an elderly person or disabled adult to whom he has a legal duty to care for or has assumed responsibility for the care of.
c.Nothing in this section shall be construed to preclude or limit the prosecution or conviction for any other offense defined in this code or in any other law of this State.
Consequences of a Criminal Guilty Plea
1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s)
2. Do you understand that if you plead guilty:
a. You will have a criminal record
b. You may go to Jail or Prison.
c. You will have to pay Fines and Court Costs.
3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail.
4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing.
5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution.
6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.
7. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.
8. You must wait 5-10 years to expunge a first offense. 2C:52-3
9. You could be put on Probation.
10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your driver's license for 6 months - 2years. You must pay a Law Enforcement Officers Training and Equipment Fund penalty of $30.
11. You may be required to do Community Service.
12. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty.
13. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction.
14. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation.
15. You lose the presumption against incarceration in future cases. 2C:44-1
16. You may lose your right to vote.
The defense of a person charged with a criminal offense is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of a criminal offense.
Jail for Crimes and Disorderly Conduct:
If someone pleads Guilty or is found Guilty of a criminal offense, the following is the statutory Prison/Jail terms.
NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years;
(2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years;
(3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years;
(4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months.
2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed:
a. (1) $200,000.00 when the conviction is of a crime of the first degree;
(2) $150,000.00 when the conviction is of a crime of the second degree;
b. (1) $15,000.00 when the conviction is of a crime of the third degree;
(2) $10,000.00 when the conviction is of a crime of the fourth degree;
c. $1,000.00, when the conviction is of a disorderly persons offense;
d. $500.00, when the conviction is of a petty disorderly persons offense;
If facing any criminal charge, retain an experienced attorney immediately to determine you rights and obligations to the court.
Subscribe to:
Posts (Atom)