violation of drug court results in extended sentence STATE V. DARRYL BISHOP

STATE V. DARRYL BISHOP

N.J.

 

SUPREME COURT OF NEW JERSEY

 

 A-26 A-27 072395 

 10-21-2015 

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, V. DARRYL BISHOP, DEFENDANT-APPELLANT. STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, V. WILBERTO TORRES, DEFENDANT-APPELLANT.

John W. Douard, Assistant Deputy Public Defender, argued the cause for appellants (Joseph E. Krakora, Public Defender, attorney). Joie D. Piderit, Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Middlesex County Prosecutor, attorney). Jennifer E. Kmieciak, Assistant Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (John H. Hoffman, Acting Attorney General, attorney). Jeffrey S. Mandel submitted a letter in lieu of brief on behalf of amicus curiae Association of Criminal Defense Lawyers of New Jersey (Cutolo Mandel, attorneys).

(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 interest of brevity, portions of any opinion may not have been summarized.)

(NOTE: The Court did not write a plenary opinion in this case. Instead, the Court affirms the judgment of the Appellate Division substantially for the reasons expressed in Judge Lisa's written opinion, which is published at 429 N.J. Super. 533 (App. Div. 2013).)

PER CURIAM

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PER CURIAM

The issue in this appeal is whether the prosecutor, by consenting to defendants' special probation sentences pursuant to N.J.S.A. 2C:35-14, irrevocably waived the right to seek an extended term sentence with a parole disqualifier - the initial sentencing alternative - upon permanent revocation of each defendant's special probation. 

Pursuant to a plea agreement, defendants Darryl Bishop and Wilberto Torres pled guilty to possession with intent to distribute heroin within one thousand feet of school property, in violation of N.J.S.A. 2C:35-7. Pursuant to N.J.S.A. 2C:43-6f, defendants were eligible for mandatory extended terms based on their prior convictions for drug offenses. The prosecutor consented to defendants being sentenced to Drug Court, specifically special probation pursuant to N.J.S.A. 2C:35-14a. Although the State recommended special probation, each plea agreement provided for an "alternate sentence" of seven years' imprisonment with a forty-two-month period of parole ineligibility, which constituted an extended term sentence. 

After serving a portion of their special probation term, each defendant pled guilty to violating probation and their probation was permanently revoked. At their violation of probation (VOP) sentencing hearings, the prosecutor sought to have the court impose the alternative sentences considered at defendants' initial sentencing hearings, and provided for in their respective plea agreements (i.e., seven-year prison terms with forty-two-month parole disqualifiers). In each case, the sentencing court found the same three aggravating factors found at initial sentencing (risk of re-offense, prior record, and the need for deterrence) and no mitigating factors. The court sentenced Bishop to a seven-year prison term with a forty-two-month parole disqualifier and Torres to a seven-year prison term with a thirty-six-month parole disqualifier. 

Defendants appealed to the Appellate Division, arguing that by consenting to special probation, the prosecutor had irrevocably waived the right to pursue the alternative sentences contemplated when they were initially sentenced. Defendants asserted that the new sentences were in violation of State v. Baylass, 114 N.J. 169 (1989), State v. Lagares, 127 N.J. 20 (1992), State v. Vasquez, 129 N.J. 189 (1992), and State v. Peters, 129 N.J. 210 (1992), all of which involved defendants whose "regular" probation pursuant to N.J.S.A. 2C:45-3b had been revoked. Defendants maintained that pursuant to the sentencing principles established in those cases, their exposure should have been no more than four-year terms with no period of parole ineligibility. They argued that because they chose special probation over the alternative sentencing option, a VOP could not trigger the alternative sentences upon revocation of special probation. 

On February 27, 2013, in a published decision, the Appellate Division affirmed defendants' sentences. 429 N.J. Super. 533(App. Div. 2013). The appellate panel distinguished special probation from regular probation, noting that generally, in the case of regular probation, which typically involves third and fourth-degree offenses, there is a presumption against state prison for defendants without a prior criminal record. If the defendant has a record, the court engages in a balancing of aggravating and mitigating factors to determine eligibility for regular probation. The Appellate Division observed, however, that special probation was tailored for those convicted of first or second-degree crimes that carry a presumption of incarceration and are thus not eligible for regular probation. The Appellate Division recognized, however, that in the case of special probation the court does not engage in a weighing of aggravating and mitigating factors to determine eligibility, but is guided by statutory *2 requirements pursuant to N.J.S.A. 2C:35-14. The Appellate Division concluded that it was entirely logical that, given the different criteria for eligibility into either regular probation or special probation, different consequences would flow should probation be permanently revoked. 

The Appellate Division reviewed the cases relied on by defendants and determined that these cases, decided between 1989 and 1992, pre-dated N.J.S.A. 2C:35-14f(4), which provides, in pertinent part: 

(4) If the court permanently revokes the person's special probation pursuant to this subsection, the court shall impose any sentence that might have been imposed, or that would have been required to be imposed, originally for the offense for which the person was convicted or adjudicated delinquent. The court shall conduct a de novo review of any aggravating and mitigating factors present at the time of both original sentencing and resentencing.

The Appellate Division noted that this provision was a "marked departure from the regular probation standard and provides express statutory direction preserving all sentencing provisions available at the original sentencing in the event of revocation of special probation." 429 N.J. Super. at 547. The Appellate Division observed that this was a particularly important development as it created for special probationers a strong incentive to stay on course towards rehabilitation, knowing that should their special probation be permanently revoked, they would face the substantial alternative sentence that would otherwise have been imposed. The Appellate Division concluded that the defendants in this case were fully informed of the consequences should they violate special probation and that the sentences imposed upon revocation were appropriate. HELD: The judgment of the Appellate Division is affirmed substantially for the reasons expressed in the Appellate Division's opinion, reported at 429 N.J. Super. 533 (App. Div. 2013). 

The judgment of the Appellate Division is AFFIRMED. 

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, and SOLOMON join in this opinion. JUDGE CUFF (temporarily assigned) did not participate. *3 On certification to the Superior Court, Appellate Division, whose opinion is reported at 429 N.J. Super. 533 (App. Div. 2013). John W. Douard, Assistant Deputy Public Defender, argued the cause for appellants (Joseph E. Krakora, Public Defender, attorney). Joie D. Piderit, Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Middlesex County Prosecutor, attorney). *4 Jennifer E. Kmieciak, Assistant Attorney General, argued the cause for amicuscuriae Attorney General of New Jersey (John H. Hoffman, Acting Attorney General, attorney). Jeffrey S. Mandel submitted a letter in lieu of brief on behalf of amicus curiae Association of Criminal Defense Lawyers of New Jersey (Cutolo Mandel, attorneys). PER CURIAM 

The judgment of the Appellate Division is affirmed, substantially for the reasons expressed in Judge Lisa's opinion reported at 429 N.J. Super. 533 (App. Div. 2013). 

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, and SOLOMON join in this opinion. JUDGE CUFF (temporarily assigned) did not participate. *5 ON CERTIFICATION TO Appellate Division, Superior Court Chief Justice Rabner PRESIDING OPINION BY Per Curiam CONCURRING/DISSENTING OPINIONS BY __________ DISSENTING OPINION BY __________

CONTRABAND 2C:29‑6b) model jury charge NJ

CONTRABAND 2C:29‑6b) model jury charge

PROVIDING AN INMATE WITH CONTRABAND[1] (N.J.S.A. 2C:29‑6b)model jury charge Under the circumstances of this case, I charge you that you should also consider whether defendant has committed the offense of providing contraband to an inmate of an institution or a detention facility. The relevant statute provides that A person commits a[n]...offense if he provides an inmate with any other thing [than a weapon, tool or other thing which may be useful for escape] which he knows or should know it is unlawful for the inmate to possess. To obtain a conviction on this charge, the State must prove each of the following elements beyond a reasonable doubt: (1)That defendant provided S1 to an inmate of an institution or a detention facility; (2)That S1 is not a weapon, tool or other thing which may be useful for escape; and (3)That defendant knew or should have known that it was unlawful for the inmate to possess S1. I have already defined the relevant terms for you.If you find that the State has failed to prove any one or more of the elements of this offense beyond a reasonable doubt, then your verdict should be Not Guilty.On the other hand, if you find that the State has proven all of the elements beyond a reasonable doubt, then your verdict should be Guilty. [1]Note:This is a lesser included offense to the crime of providing an implement for escape to an inmate of an institution or a detention facility underN.J.S.A. 2C:29‑6a.The following is not meant to stand alone, but to serve as a supplement to the model charge entitledEscape Implements ‑ Introducing into Institution or Providing Inmate(N.J.S.A. 2C:29‑6a).

Contempt of Court in New Jersey

Contempt of Court in New Jersey The judge must follow the following Rules and Statutes before fining someone for contempt of court: Rule 1:10-1. Summary Contempt in Presence of Court A judge conducting a judicial proceeding may adjudicate contempt summarily without an order to show cause if: (a) the conduct has obstructed, or if continued would obstruct, the proceeding; (b) the conduct occurred in the actual presence of the judge, and was actually seen or heard by the judge; (c) the character of the conduct or its continuation after an appropriate warning unmistakably demonstrates its willfulness; (d) immediate adjudication is necessary to permit the proceeding to continue in an orderly and proper manner; and (e) the judge has afforded the alleged contemnor an immediate opportunity to respond. The order of contempt shall recite the facts and contain a certification by the judge that he or she saw or  the  constituting the contempt and that the contemnor was willfully contumacious. Punishment may be determined forthwith or deferred. Execution of sentence shall be stayed for five days following imposition and, if an appeal is taken, during the pendency of the appeal, provided, however, that the judge may require bail if reasonably necessary to assure the contemnor's appearance. Rule 1:10-2. Summary Contempt Proceedings on Order to Show Cause or Order for Arrest (a) Institution of Proceedings. Every summary proceeding to punish for contempt other than proceedings under R. 1:10-1 shall be on notice and instituted only by the court upon an order for arrest or an order to show cause specifying the acts or omissions alleged to have been contumacious. The proceedings shall be captioned "In the Matter of ______ Charged with Contempt of Court." (b) Release Pending Hearings. A person charged with contempt under R. 1:10-2 shall be released on his or her own recognizance pending the hearing unless the judge determines that bail is reasonably necessary to assure appearance. The amount and sufficiency of bail shall be reviewable by a single judge of the Appellate Division. (c) Prosecution and Trial. A proceeding under R. 1:10-2 may be prosecuted on behalf of the court only by the Attorney General, the County Prosecutor of the county or, where the court for good cause designates an attorney, then by the attorney so designated. The matter shall not be heard by the judge who instituted the prosecution if the appearance of objectivity requires trial by another judge. Unless there is a right to a trial by jury, the court in its discretion may try the matter without a jury. If there is an adjudication of contempt, the provisions of R. 1:10-1 as to stay of execution of sentence shall apply. Rule 1:10-3. Relief to Litigant Notwithstanding that an act or omission may also constitute a contempt of court, a litigant in any action may seek relief by application in the action. A judge shall not be disqualified because he or she signed the order sought to be enforced. If an order entered on such an application provides for commitment, it shall specify the terms of release provided, however, that no order for commitment shall be entered to enforce a judgment or order exclusively for the payment of money, except for orders and judgments based on a claim for equitable relief including orders and judgments of the Family Part and except if a judgment creditor demonstrates to the court that the judgment debtor has assets that have been secreted or otherwise placed beyond the reach of execution. The court in its discretion may make an allowance for counsel fees to be paid by any party to the action to a party accorded relief under this rule. In family actions, the court may also grant additional remedies as provided by R. 5:3-7. An application by a litigant may be tried with a proceeding under R. 1:10-2(a) only with the consent of all parties and subject to the provisions of R. 1:10-2(c). The Supreme Court also issue a directive to Judges regarding the use of Rule 1:10-1 (Contempt in Presence of Court) Directive #8-99 In 1994, the Supreme Court amended Rule 1:10-1 to detail the basis for and procedures governing the use of the summary contempt power. The Rule, as amended, provides as follows: A judge conducting a judicial proceeding may adjudicate contempt summarily without an order to show cause if: (a) the conduct has obstructed, or if continued would obstruct the proceeding; (b) the conduct occurred in the actual presence of the judge, and was actually seen or heard by the judge; (c) the character of the conduct or its continuation after an appropriate warning unmistakably demonstrates its willfulness; (d) immediate adjudication is necessary to permit the proceeding to continue in an orderly and proper manner; and (e) the judge has afforded the alleged contemnor an immediate opportunity to respond. The order of contempt shall recite the facts and contain a certification by the judge that he or she saw or heard the conduct constituting the contempt and that the contemnor was willfully contumacious. Punishment may be determined forthwith or deferred. Execution of sentence shall be stayed for five days following imposition and, if an appeal is taken, during the pendency of the appeal, provided, however, that the judge may require bail if reasonably necessary to assure the contemnor's appearance. All of the requirements of paragraphs (a) through (e) must be met before a judge uses the summary contempt power. In particular, you will note that the conduct must have obstructed the proceeding and have been Actually seen or heard by the judge. The Rule also provides for a warning and an opportunity for the party to respond, all of which contemplates that the offending party is actually in the presence of the judge when the conduct occurs. The significant changes to Rule 1:10-1 were the result of a report by a special Summary Contempt Subcommittee of the Civil Practice Committee. That Committee's recommendations to the Supreme Court and the Court's adoption of those recommendations make it abundantly clear that it is inappropriate for judges to use the summary contempt power when confronted by offensive comments written in letters, on checks, or on envelopes. If threatening language is used in a written communication, the court should follow the established policy contained in the 1988 Guidelines on: Threats to Members of the Judiciary, (copy attached) rather than resorting to the use of Rule 1:10-1. (For a discussion of the Supreme Court's concerns that pre-dated the Committee's Report, see Matter of Daniels, 118 N.J. 51, 60 (1990).) Courts and court staff are obliged to process written communications, including negotiable instruments, from litigants who gratuitously include profane and scurrilous comments. This does not mean that such submissions need always go unremarked. In an egregious case, a carefully measured written response may be made. The content of such a response cannot, however, implicate the powers provided under Rule 1:10-1. CONTEMPT (N.J.S.A. 2C:29-9) The following is the Jury charge on Criminal Contempt: The defendant is charged with committing the crime of contempt. The Statutes of New Jersey describe the crime of "contempt" as follows: A person is guilty of a crime . . . if he purposely or knowingly disobeys a judicial order or hinders, obstructs or impedes the effectuation of a judicial order or the exercise of jurisdiction over any person, thing or controversy by a Court, administrative body or investigative entity. In order for the defendant to be found guilty of contempt, you must find each of the following elements beyond a reasonable doubt: [The Judge will charge any or all of the following alternatives as appropriate.] Alternative 1: (Charge in the case of disobedience of an order.) 1. An Order of the Court had been entered. 2. That the defendant knew of the existence of the Order. 3. That the defendant purposely or knowingly disobeyed the Order. A person has disobeyed a judicial order when that person has, with knowledge of the existence of the order, purposely or knowingly refused or failed to comply with an order as entered by the Court which applies to (him/her). A court order may either be written or oral. In the case at hand the proofs indicate that the order which the defendant has been charged with disobeying was written/oral. OR Alternative 2: Charge in the case of hindering, obstructing or impeding the effectuation of a judicial order. 1. An order of the Court had been entered. 2. That the defendant knew of the existence of the Order. 3. The defendant purposely or knowingly hindered, obstructed or impeded the fulfillment of the judicial order KENNETH VERCAMMEN & ASSOCIATES, PC ATTORNEY AT LAW 2053 Woodbridge Ave. Edison, NJ 08817 (Phone) 732-572-0500 (Fax) 732-572-0030 TRIAL AND LITIGATION EXPERIENCE In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He appears in Courts throughout New Jersey several times each week on many personal injury matters, Criminal and Municipal/ traffic Court trials, Probate hearings, and contested administrative law hearings. Mr. Vercammen served as the Prosecutor for the Township of Cranbury, Middlesex County and was involved in trials on a weekly basis. He also argued all pre-trial motions and post-trial applications on behalf of the State of New Jersey. He has also served as a Special Acting Prosecutor in Woodbridge, Perth Amboy, Berkeley Heights, Carteret, East Brunswick, Jamesburg, South Brunswick, South River and South Plainfield for conflict cases. Since 1989, he has personally handled hundreds of criminal and motor vehicle matters as a Prosecutor and now as defense counsel and has had substantial success. Previously, Mr. Vercammen was Public Defender for the Township of Edison and Borough of Metuchen and a Designated Counsel for the Middlesex County Public Defender's Office. He represented indigent individuals facing consequences of magnitude. He was in Court trying cases and making motions in difficult criminal and DWI matters. Every case he personally handled and prepared. His resume sets forth the numerous bar associations and activities which demonstrate his commitment to the legal profession and providing quality representation to clients. Since 1985, his primary concentration has been on litigation matters. Mr. Vercammen gained other legal experiences as the Confidential Law Clerk to the Court of Appeals of Maryland (Supreme Court) with the Delaware County, PA District Attorney Office handling Probable Cause Hearings, Middlesex County Probation Department as a Probation Officer, and an Executive Assistant to Scranton District Magistrate, Thomas Hart, in Scranton, PA.

CONTEMPT (N.J.S.A. 2C:29‑9) model jury charge NJ

CONTEMPT (N.J.S.A. 2C:29‑9) model jury charge

CONTEMPT (N.J.S.A. 2C:29‑9)model jury charge The defendant is charged with committing the crime of contempt. The Statutes of New Jersey describe the crime of contempt as follows: A person is guilty of a crime . . . if he purposely or knowingly disobeys a judicial order or hinders, obstructs or impedes the effectuation of a judicial order or the exercise of jurisdiction over any person, thing or controversy by a Court, administrative body or investigative entity. In order for the defendant to be found guilty of contempt, you must find each of the following elements beyond a reasonable doubt: [Charge any or all of the following alternatives as appropriate.] Alternative 1:(Charge in the case of disobedience of an order.) 1.An Order of theCourt had been entered.[1] 2.That the defendant knew of the existence of the Order. 3.That the defendant purposely or knowingly disobeyed the Order. A person has disobeyed a judicial order when that person has, with knowledge of the existence of the order, purposely or knowingly refused or failed to comply with an order as entered by theCourt which applies tohim/her.A court order may either be written or oral.In the case at hand the proofs indicate that the order which the defendant has been charged with disobeying was written/oral. OR Alternative 2:Charge in the case of hindering, obstructing or impeding the effectuation of a judicial order. 1.An order of theCourt had been entered.[2] 2.That the defendant knew of the existence of the Order. 3.The defendant purposely or knowingly hindered, obstructed or impeded the fulfillment of the judicial order. OR Alternative 3:Charge in the case of hindering, obstructing or impeding the exercise of jurisdiction of a court, administrative body or investigative entity. 1.There had been an exercise of jurisdiction or an attempt to exercise jurisdiction by[insert name of Court, administrative body or investigative entity]over any person, thing or element in controversy.[3] 2.The defendant knew of the existence of this exercise of jurisdiction or attempted exercise of jurisdiction. 3.That the defendant byhis/herconduct hindered, obstructed or impeded, that is, byhis/heractions, prevented, deterred, delayed or inhibited byhis/herpurposeful and knowing actions the exercise of jurisdiction of[insert name of Court, administrative body or investigative entity]. A person has hindered, obstructed or impeded the fulfillment of [a judicial order or the exercise of jurisdiction] by a [court, administrative body or investigative entity] whenhe/shehas purposely or knowingly in any way made the accomplishment of the juridical order or exercise of jurisdiction more difficult.In this situation, it does not matter whether the order or the exercise of jurisdiction is directed to the Defendant. [The following will be charged in all instances] Before the defendant can be found guilty of contempt, you must decide beyond a reasonable doubt that the defendant has purposely or knowingly [disobeyed a judicial order or hindered a judicial order or exercise of jurisdiction] beyond a reasonable doubt. A person acts purposely with respect to the nature ofhis/herconduct or a result thereof if it ishis/herconscious object to engage in conduct of that nature or to cause such a result.A person acts purposely with respect to attendantcircumstances ifhe/sheis aware of the existence of such circumstances orhe/shebelieves or hopes that they exist.With purpose,designed, with design or equivalent terms have the same meaning. A person acts knowingly with respect to the nature ofhis/herconduct or the attendant circumstances ifhe/sheis aware thathis/herconduct is of that nature, or that such circumstances exist, orhe/sheis aware of a high probability of their existence.A person acts knowingly with respect to a result ofhis/herconduct ifhe/sheis aware that it is practically certain thathis/herconduct will cause such a result.Knowing, with knowledge or equivalent terms have the same meaning. If you find beyond a reasonable doubt that the defendant purposely or knowingly [disobeyed a judicial order or hindered a judicial order or exercise of jurisdiction], then you must find defendant guilty of contempt.However, if you are not satisfied that the State has proved each of these elements beyond a reasonable doubt, then you must find the defendant not guilty. [1]The question as to whether there is an order or an exercise of jurisdiction is generally a determination of law to be made by the Court. [2]The question as to whether there is an order or an exercise of jurisdiction is generally a determination of law to be made by the court. [3]Ibid.

Constructive Possession of Drugs in a Criminal Case NJ

Constructive Possession of Drugs in a Criminal Case

Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey. CONSTRUCTIVE POSSESSION OF DRUGS IN A CRIMINAL CASE "For this offense the state must prove three material elements. First, it must be proved that the item is a controlled dangerous substance. Second, it must be proved that defendant either obtained or possessed the substance. Third it must be proved that defendant acted knowingly or intentionally." 33 N.J. Practice §521 p.475. The state must prove that the defendant acted knowingly or intentionally. The state must prove that defendant knew the nature and character of the item, and it must prove that Jamess purpose in possessing the substance was to distribute it. 33 N.J. Practice §520 p.471 (1982). Possession is the intentional control of an item accompanied by an awareness of its character. Constructive possession is when the defendant is aware of the substance and has an intention to exercise  control over the substance. State v. Brown, 67 N.J. Super. 450, 455, 171 A. 2d 15, 18 (App. Div. 1961). Joint possession is when people knowingly share control over the article. State v. Rajnai, 132 N.J. Super. 530, 536, 334 A. 2d 364, 367 (App. Div. 1975). It is an offense to knowingly or intentionally obtain or possess a controlled dangerous substance. N.J.S.A. 24:21-20a. "The state must prove knowledge or intent on the part of the defendant. Knowledge means that the defendant was aware of the existence of the object and was aware of its character. Intent means it was the defendants purpose to obtain or possess the item while being aware of its character.  State v. McMenamin, 133 N.J. Super. 521, 524, 337 A. 2d 630, 631 (App. Div. 1975); State v. Brown, 67 N.J. Super. 450, 455, 171 A. 2d 15, 18 (App. Div. 1961). Mere presence in a premises with other persons where controlled dangerous substances are found is not sufficient to justify an inference that a particular defendant was in sole or joint possession of the substance. State v. Sapp, 71 N.J. 476, 477, 366 A. 2d 334, 335 (1976), overruled on other grounds by State v. Brown, 80 N.J. 587, 404 A. 2d 1111 (1979). The state must prove that the defendant was aware of the character of the substance to prove that the defendant acted with knowledge. State v. Reed, 34 N.J. 554, 557, 170 A. 2d 419, 421 (1961); State v. Rajnai, 132 N.J. Super. 530, 536, 334 A. 2d 364, 367 (App. Div. 1975).

Conspiracy and Assault NJ

Conspiracy and Assault

Brief to Dismiss Indictment Charge of Conspiracy and Assault  The following is a draft of a Brief to Dismiss Indictment Charge of Conspiracy and Assault. Attorneys should revise this to pertain to the facts of their cases. Conspiracy and Assault POINT I The grand jury was presented with no evidence of a conspiracy.    It is a fundamental principle of constitutional law that no person shall be required to stand trial for a criminal offense absent proper presentment and indictment by a grand jury. N.J. CONST. art. I and U.S. CONST. amend V. The grand jury has historically acted as the citizens' shield from patently frivolous prosecutions.   Stirone vs. United States, 361 U.S. 212, 80 S. CT. 270, 4 L.Ed.2d 252 (1960). It has been recognized that this salutary purpose is frustrated when a defendant is compelled to bear the expense and humiliation of a public trial based upon an improperly brought indictment. See, e.g. State vs. Donovan 129 N.J.L. 478 (Sup. Ct. 1943).        The primary function of the grand jury is to hear evidence against a person accused of crimes and to make a determination, based on the evidence presented, as to whether or not the person so charged shall be required to stand trial on such charges. Rosetty vs. Hamilton Tp. Com., 82 N.J. Super. 340,348 (Law Div. 1964), aff'd o.b. 96 N.J. Super. 66 (App. Div. 1967). New Jersey courts may exercise its supervisory power to remedy perceived injustices in grand jury proceedings and dismiss indictments where the grand jury has acted on the basis of insufficient or incompetent evidence. State v. Hogan, 144 N.J 216, 227 (1996) (citing State vs. Murphy, 110 N.J. 20, 33 (1988) State vs. Del Fino, 100 N.J. 154 (1985); see, e.g. State vs. Chandler, 98 N.J. super 241 (Law Div. 1967).       Although the dismissal of an indictment is an extraordinary remedy which a court should ordinarily not impose except on the clearest and plainest grounds, State vs. Ferrante, 111 N.J. Super. 299 (App. Div. 1970); State vs. Penta, 127 N.J. Super. 201 (Law Div. 1974), the right of an accused to move for dismissal on the ground of lack of evidence before the grand jury has long been recognized. See, e.g. State vs. Dayton, 23 N.J. L. (Sup. Ct. 1850); State vs. Brown, 188 N.J. Super. 656 (Law Div. 1983).       A defendant with substantial grounds for having an indictment dismissed should not be compelled to go to trial to prove the insufficiency. State vs. Graziani, 60 N.J. Super. 1,22 (App. Div. 1959), aff'd o.b. 31 N.J. 538 (1960), cert. den. 363 U.S. 830 S. Ct. 1001,4 L.Ed.2d 15214 (1960). In order for a State's prima facie case to the grand jury to appear sufficient on its face, the State must present some evidence as to each element of the charged offenses. State vs. Schenklewski, 301 N.J. Super. 115, 137 (App. Div.), cert. den. 151 N.J. 77 (1977) and State vs. Bennett, 194 N.J. Super 231, 234 (App. Div. 1984).  See also, State vs. Scherzer, 302 N.J. Super. 363, 428 (App. Div.), cert. den. 151 N.J. 466 (1997). 2C:5-2 defines conspiracy as follows: POINT II    The State has an obligation to see that the Grand Jury is properly instructed as to the law and here there was no instruction as to the elements of conspiracy.       Regarding the obligation of a prosecutor to charge a Grand Jury as to the applicable law, it was held in State vs. Hogan, 336 N.J.S. 319, 343 (App. Div. 2001) cert. denied 167 N.J. 635 (2001) that "the rule... is only when the facts known to the prosecutor clearly indicate or clearly establish the appropriateness of an instruction that duty of the prosecutor arises".        In describing the duties of a prosecutor before a Grand Jury, Judge Arnold, citing State vs. Laws 262 N.J.S. 55 (App. Div. 1993) and State vs. Ball 218 N.J.S. 72 (App. Div. 1993) wrote "The prosecutor should state the elements of each crime, although a mere reading of the statute would appear to suffice". Arnold, Criminal Practice and Procedure 10.27.    Here the prosecutor asked the Grand Jury to consider a charge of conspiracy but gave no legal guidance as to any of its elements. POINT III    The prosecute failed to advise the Grand Jury of the definitions of bodily injury, significant bodily injury or serious bodily injury and asked the Grand Jury solely to consider Aggravated Assault and Conspiracy to Commit Aggravated Assault.        Simple Assault should be charged as a lesser included offense of Aggravated Assault whenever there is a rational basis to do so. State vs. Farrele 250 N.J.S. 386 (App. Div. 1991). Although Farrele dealt with petit jury instructions, the rational of Hogan, supra applies. Since Ms. Sheetz said she suffered only slight bruising, the prosecutor should have given a complete charge as to Aggravated Assault and its lesser included offense, Simple Assault. POINT IV    The evidence before the Grand Jury does not support a charge of Aggravated Assault and therefore cannot support a charge of Conspiracy to Commit Aggravated Assault. POINT V    Prejudicial hearsay evidence of alleged other misconduct as to Defendant Joshua Lowles was introduced before the Grand Jury and no curative or limiting instruction was provided by the prosecutor.    As held in State vs. Hogan, supra, and State vs. Hart, 139 N.J.S. 565 (App. Div. 1976), a prosecutor must never attempt to influence a Grand Jury to return an indictment. The gratuitous introduction of a hearsay declaration as to other alleged joint misconduct by -----    "An indictment may not be dismissed because of non-constitutional errors in presenting the case to the grand jury unless such errors prejudiced the defendant. The inquiry regarding prejudice must focus on whether the errors had an effect on the grand jury's decision to influence the decision, or there is grave doubt that the decision to indict was  free from such substantial influence, the errors cannot be deemed to be harmless and the indictment must be dismissed." Arnold, Criminal Practice and Procedure (2004-2005) 10.48    It is suggested above that there was insufficient evidence presented to this Grand Jury to support the Aggravated Assault, let along a conspiracy to commit Aggravated Assault by others not involved in the assault. At a minimum there has to be grave doubt, to use Judge Arnold's phrase, that the conspiracy charge was indicted free from the prejudicial impact of the "other crime's" evidence. CONCLUSION    For the reason set forth above, the Indictment against _____ should be dismissed.

CONSPIRACY - RENUNCIATION (N.J.S.A. 2C:5-2e) model jury charge NJ

CONSPIRACY - RENUNCIATION (N.J.S.A. 2C:5-2e) model jury charge

CONSPIRACY - RENUNCIATION[1] (N.J.S.A.2C:5-2e) The defendant has raised the defense of renunciation.Even if you are satisfied that the defendant conspired to commit the crime of ________________________, you must nevertheless find defendant Not Guilty if you find that afterwardshe/sheinformed the authorities of the existence of the conspiracy, includinghis/herparticipation in it,andthathe/shewas thereby successful in thwarting or causing to be thwarted, i.e., preventing or causing to be prevented, the commission of any offense in furtherance of the conspiracy.This defense further requires you to be satisfied that the circumstances of defendants going to the authorities manifested a voluntary and complete renunciation ofhis/herearlier criminal purpose. Renunciation is not voluntary if the reason the defendant went to the authorities was thathe/shelearned something which would make it more likely that the authorities would arresthim/heror detect whathe/shehad done; or ifhe/shewent to the authorities becausehe/shelearned something that would make it more difficult to commit the crime which was the object of the conspiracy.Renunciation is not complete if the defendant went to the authorities without completely washinghis/herhands of the conspiracy.It is no defense if the defendant merely meant to postponehis/hercriminal objective to a more advantageous time or to transferhis/hercriminal efforts to some other victim or to some different but similar crime. (DISCUSS EVIDENCE OF RENUNCIATION) I previously instructed you that the State has the burden of proving the elements of the crime of conspiracy beyond a reasonable doubt.The defendant has the burden of proving the defense of renunciation.That burden, however, is not so heavy as the one on the State.While the State must convince you beyond a reasonable doubt that the defendant committed the crime of conspiracy, the defendant need only convince you by a preponderance, or the greater weight, of the evidence thathe/sherenounced the crime.This means that the defendant has established the defense of renunciation ifhe/shehas satisfied you that it is more likely than notthathe/she (1)Informed the authorities of the existence of the conspiracyandhis/herparticipation in it, and (2)Thwarted or caused to be thwarted the commission of any offense in furtherance of the conspiracy.An attempt to commit a crime is not considered an offense for purposes of renunciation, and (3)Thathe/shedid so under circumstances manifesting a voluntary and complete renunciation ofhis/heroriginal criminal purpose. If, after a consideration of all of the evidence, you find that the State has proven beyond a reasonable doubt that the defendant committed the crime of conspiracy, and you also find that the defendant has not proven the defense of renunciation by a preponderance of the evidence, then you must find the defendant Guilty.On the other hand, if you do not find that the State has proven beyond a reasonable doubt that the defendant committed the crime of conspiracy, or if you find that the State has proven the crime of conspiracy beyond a reasonable doubt but that the defendant has also proven the defense of renunciation by a preponderance of the evidence, then you must find the defendant Not Guilty. [1]This charge applies only to conspiracy charges.If defendant is also charged with an attempted offense to which he/she is claiming renunciation, the attempt renunciation charge should be used.SeeN.J.S.A. 2C:5-1d.

CONSPIRACY (N.J.S.A. 2C:5-2) model jury charge NJ

CONSPIRACY (N.J.S.A. 2C:5-2) model jury charge

CONSPIRACY (N.J.S.A. 2C:5-2) Under the ____________ count of the indictment the defendant(s) is (are) charged with the crime of conspiracy to commit _____________.N.J.S.A.2C:5-2 provides as follows: A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he: (SELECT APPROPRIATE SECTION) (1) Agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or (2) Agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime. A conspiracy to commit the crime of ________________ is a crime in itself separate and distinct from the crime of _______________.In other words, a defendant may be found guilty of the crime of conspiracy regardless of whether that defendant is guilty or not guilty of the crime of _________________. In order for you to find a defendant guilty of the crime of conspiracy, the State must prove beyond a reasonable doubt the following elements: (1) That the defendant agreed with another person or persons that they or one or more of them would engage in conduct which constitutes a crime or an attempt or solicitation to commit such crime; OR That the defendant agreed to aid another person or persons in the planning or commission of a crime or of an attempt or solicitation to commit such crime. (2) That the defendants purpose was to promote or facilitate the commission of the crime of (Identify substantive offense). A person acts purposely with respect to the nature of his/her conduct or a result thereof, if it is his/her conscious object to engage in conduct of that nature or cause such a result.A person acts purposely with respect to attendant circumstances if he/she is aware of the existence of such circumstances or he/she believes or hopes that they exist. (CHARGE THE FOLLOWING FOR CRIMES OF THE THIRD AND FOURTH DEGREE - EXCEPT FOR CRIMES ALLEGING DISTRIBUTION OR POSSESSION WITH INTENT TO DISTRIBUTE CDS OR CDS ANALOG) (3) That the defendant or a person with whom he/she conspired did an overt act in pursuance of the conspiracy.An overt act is any act in pursuance of the conspiracy. In order to find a defendant guilty of the crime of conspiracy, the State does not have to prove that he/she actually committed the crime of (Identify substantive offense).However, to decide whether the State has proven the crime of conspiracy you must understand what constitutes the crime of __________________. (IF NOT PREVIOUSLY STATED GIVE MODEL CHARGE FOR THE UNDERLYING OFFENSE) A conspiracy may be proven by direct or circumstantial evidence.It is not essential that there be direct contact among all of the conspirators or that they enter the agreement at the same time. If the defendant is aware that any person he/she conspired with also conspired with others to commit the same crime, the defendant is guilty of conspiring with the others.He/She need not be aware of their identity. Mere association, acquaintance, or family relationship with an alleged conspirator is not enough to establish a defendants guilt of conspiracy.Nor is mere awareness of the conspiracy.Nor would it be sufficient for the State to prove only that the defendant met with others, or that they discussed names and interests in common.However, any of these factors, if present, may be taken into consideration along with all other relevant evidence in your deliberations. You have to decide whether the defendants purpose was that he/she or a person with whom he/she was conspiring would commit the crime of _________________.For him/her to be found guilty of conspiracy, the State has to prove beyond a reasonable doubt that when he/she agreed it was his/her conscious object or purpose to promote or make it easier to commit the crime(s) or (Identify substantive offense). The nature of the purpose with which the defendant acted is a question of fact for you the jury to decide.Purpose is a condition of the mind which cannot be seen and can only be determined by inferences from conduct, words or acts.It is not necessary for the State to produce a witness or witnesses who could testify that the defendant stated, for example, that he/she acted with a specific purpose.It is within your power to find that proof of purpose has been furnished beyond a reasonable doubt by inferences which may arise from the nature of the acts and the surrounding circumstances. It also makes no difference what the person or persons with whom the defendant actually conspired had in mind, so long as the defendant believed that he/she was furthering the commission of the crime of ___________________. (CHARGE THE FOLLOWING ONLY FOR THOSE CRIMES FOR WHICH IT IS NECESSARY TO PROVE OVERT ACTS, NAMELY ALL THIRD AND FOURTH DEGREE CRIMES EXCEPT THOSE ALLEGING DISTRIBUTION OR POSSESSION WITH INTENT TO DISTRIBUTE CDS OR CDS ANALOG) I have already explained that to find the defendant guilty of conspiracy you have to be convinced beyond a reasonable doubt that he/she agreed with somebody in the manner and with the purpose I described.In addition, for this type of conspiracy, one of the conspirators must have done at least one overt act in furtherance of the conspiracy, that is, any act directed toward the objective of committing the crime of (Identify substantive offense). The State is not required to prove an overt act by every conspirator.The State is only obligated to prove one overt act by any conspirator. WHERE APPLICABLE, SET FORTH THE OVERT ACTS IN EVIDENCE In order to convict you have to be satisfied beyond a reasonable doubt that the State has proven an overt act by a conspirator in furtherance of the conspiracy. In summary, the State must prove the following elements: (1) That the defendant agreed with another person or persons that they or one or more of them would engage in conduct which constitutes a crime or an attempt or solicitation to commit such crime; OR That the defendant agreed to aid another person or persons in the planning or commission of a crime or of an attempt or solicitation to commit a crime. (2) That defendants purpose was to promote or facilitate the commission of the crime of _______________________. (CHARGE THIRD ELEMENT BELOW - ONLY FOR CRIMES OF THE THIRD AND FOURTH DEGREE -- EXCEPT FOR CRIMES ALLEGING DISTRIBUTION OR POSSESSION WITH INTENT TO DISTRIBUTE CDS OR CDS ANALOG) (3) That defendant or a person with whom he/she conspired did an overt act in pursuance of the conspiracy. (CHARGE IN ALL CASES) If you find that the State has proven each one of these elements beyond a reasonable doubt, then you must find defendant guilty. If you find that the State has failed to prove any of these elements beyond a reasonable doubt, then you must find defendant not guilty. If, after consideration of all the evidence you are convinced beyond a reasonable doubt that the State has proven each and every one of the elements, then you must find the defendant guilty of the crime of conspiracy.On the other hand, if you find that the State has failed to prove to your satisfaction beyond a reasonable doubt any one or more of these elements, then you must find the defendant not guilty of the crime of conspiracy. (CHARGE THE FOLLOWING PARAGRAPH WHEN APPROPRIATE) Each offense and each defendant in this indictment should be considered by you separately.The fact that you may find a particular defendant guilty or not guilty of a particular crime should not control your verdict as to any other offense charged against that defendant, and it should not control your verdict as to the charges against any other defendant.

Conspiracy NJ

Conspiracy

Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey. 2C:5-2. Conspiracy Conspiracy. a. Definition of conspiracy. A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he: (1) Agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or (2) Agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime. b. Scope of conspiratorial relationship. If a person guilty of conspiracy, as defined by subsection a. of this section, knows that a person with whom he conspires to commit a crime has conspired with another person or persons to commit the same crime, he is guilty of conspiring with such other person or persons, whether or not he knows their identity, to commit such crime. c. Conspiracy with multiple objectives. If a person conspires to commit a number of crimes, he is guilty of only one conspiracy so long as such multiple crimes are the object of the same agreement or continuous conspiratorial relationship. It shall not be a defense to a charge under this section that one or more of the objectives of the conspiracy was not criminal; provided that one or more of its objectives or the means of promoting or facilitating an objective of the conspiracy is criminal. d. Overt act. No person may be convicted of conspiracy to commit a crime other than a crime of the first or second degree or distribution or possession with intent to distribute a controlled dangerous substance or controlled substance analog as defined in chapter 35 of this title, unless an overt act in pursuance of such conspiracy is proved to have been done by him or by a person with whom he conspired. e. Renunciation of purpose. It is an affirmative defense which the actor must prove by a preponderance of the evidence that he, after conspiring to commit a crime, informed the authority of the existence of the conspiracy and his participation therein, and thwarted or caused to be thwarted the commission of any offense in furtherance of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of criminal purpose as defined in 2C:5-1d.; provided, however, that an attempt as defined in 2C:5-1 shall not be considered an offense for purposes of renunciation under this subsection. f. Duration of conspiracy. For the purpose of section 2C:1-6d.: (1) Conspiracy is a continuing course of conduct which terminates when the crime or crimes which are its object are committed or the agreement that they be committed is abandoned by the defendant and by those with whom he conspired; and (2) Such abandonment is presumed with respect to a crime other than one of the first or second degree if neither the defendant nor anyone with whom he conspired does any overt act in pursuance of the conspiracy during the applicable period of limitation; and (3) If an individual abandons the agreement, the conspiracy is terminated as to him only if and when he advises those with whom he conspired of his abandonment or he informs the law enforcement authorities of the existence of the conspiracy and of his participation therein. g. Leader of organized crime. A person is a leader of organized crime if he purposefully conspires with others as an organizer, supervisor or manager, to commit a continuing series of crimes which constitute a pattern of racketeering activity under the provisions of N.J.S. 2C:41-1, provided, however, that notwithstanding 2C:1-8a. (2), a conviction of leader of organized crime shall not merge with the conviction of any other crime which constitutes racketeering activity under 2C:41-1. L. 1978, c. 95; amended by L. 1979, c. 178, s. 17; 1981, c. 167, s. 3; 1981, c. 290, s. 10; 1981, c. 511, s. 1; 1987, c. 106, s. 4. If someone is charged with CONSPIRACY (N.J.S.A. 2C:5-2), the Judge will read the following instructions and law to the jury: Under the __________ count of the indictment the defendant(s) is (are) charged with the crime of conspiracy to commit _____________. N.J.S.A. 2C:5-2 provides as follows: A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he/she: (SELECT APPROPRIATE SECTION) (1) Agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or (2) Agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime. A conspiracy to commit the crime of ________________is a crime in itself separate and distinct from the crime of _______________. In other words, a defendant may be found guilty of the crime of conspiracy regardless of whether that defendant is guilty or not guilty of the crime of _____________________. In order for you to find a defendant guilty of the crime of conspiracy, the state must prove beyond a reasonable doubt the following elements: (1) That the defendant agreed with another person or persons that they or one or more of them would engage in conduct which constitutes a crime or an attempt or solicitation to commit such crime; OR That the defendant agreed to aid another person or persons in the planning or commission of a crime or of an attempt or solicitation to commit such crime. (2) That the defendant's purpose was to promote or facilitate the commission of the crime of (Identify substantive offense). A person acts purposely with respect to the nature of (his/her) conduct or a result thereof, if it is (his/her) conscious object to engage in conduct of that nature or cause such a result. A person acts purposely with respect to attendant circumstances if (he/she) is aware of the existence of such circumstances or (he/she) believes or hopes that they exist. (CHARGE THE FOLLOWING FOR CRIMES OF THE THIRD AND FOURTH DEGREE - EXCEPT FOR CRIMES ALLEGING DISTRIBUTION OR POSSESSION WITH INTENT TO DISTRIBUTE CDS OR CDS ANALOG)1 (3) That the defendant or a person with whom he/she conspired did an overt act in pursuance of the conspiracy. An overt act is any act in pursuance of the conspiracy.2 In order to find a defendant guilty of the crime of conspiracy, the State does not have to prove that (he/she) actually committed the crime of (Identify substantive offense). However, to decide whether the State has proven the crime of conspiracy you must understand what constitutes the crime of (IF NOT PREVIOUSLY STATED GIVE MODEL CHARGE FOR THE UNDERLYING OFFENSE) A conspiracy may be proven by direct or circumstantial evidence. It is not essential that there be direct contact among all of the conspirators or that they enter the agreement at the same time. If the defendant is aware that any person (he/she) conspired with also conspired with others to commit the same crime, the defendant is guilty of conspiring with the others. He/she need not be aware of their identity. Mere association, acquaintance, or family relationship with an alleged conspirator is not enough to establish a defendant's guilt of conspiracy. Nor is mere awareness of the conspiracy. Nor would it be sufficient for the State to prove only that the defendant met with others, or that they discussed names and interests in common. However, any of these factors, if present, may be taken into consideration along with all other relevant evidence in your deliberations. You have to decide whether the defendant's purpose was that he/she or a person with whom he/she was conspiring would commit the crime of _________________. For him/her to be found guilty of conspiracy, the State has to prove beyond a reasonable doubt that when he/she agreed it was his/her conscious object or purpose to promote or make it easier to commit the crime(s) or (Identify substantive offense). The nature of the purpose with which the defendant acted is a question of fact for you the jury to decide. Purpose is a condition of the mind which cannot be seen and can only be determined by inferences from conduct, words or acts. It is not necessary for the State to produce a witness or witnesses who could testify that the defendant stated, for example, that he/she acted with a specific purpose. It is within your power to find that proof of purpose has been furnished beyond a reasonable doubt by inferences which may arise from the nature of the acts and the surrounding circumstances. It also makes no difference what the person or persons with whom the defendant actually conspired had in mind, so long as the defendant believed that he/she was furthering the commission of the crime of ____________________________. (CHARGE THE FOLLOWING ONLY FOR THOSE CRIMES FOR WHICH IT IS NECESSARY TO PROVE OVERT ACTS, NAMELY ALL THIRD AND FOURTH DEGREE CRIMES EXCEPT THOSE ALLEGING DISTRIBUTION OR POSSESSION WITH INTENT TO DISTRIBUTE CDS OR CDS ANALOG) I have already explained that to find the defendant guilty of conspiracy you have to be convinced beyond a reasonable doubt that he/she agreed with somebody in the manner and with the purpose I described. In addition, for this type of conspiracy, one of the conspirators must have done at least one overt act in furtherance of the conspiracy, that is, any act directed toward the objective of committing the crime of (Identify substantive offense).3 The State is not required to prove an overt act by every conspirator. The State is only obligated to prove one overt act by any conspirator. WHERE APPLICABLE, SET FORTH THE OVERT ACTS IN EVIDENCE. In order to convict you have to be satisfied beyond a reasonable doubt that the State has proven an overt act by a conspirator in furtherance of the conspiracy.4 In summary, the State must prove the following elements: (1) That the defendant agreed with another person or persons that they or one or more of them would engage in conduct which constitutes a crime or an attempt or solicitation to commit such crime; OR That the defendant agreed to aid another person or persons in the planning or commission of a crime or of an attempt or solicitation to commit a crime. (2) That defendant's purpose was to promote or facilitate the commission of the crime of ___________________________. (CHARGE THIRD ELEMENT BELOW - ONLY FOR CRIMES OF THE THIRD AND FOURTH DEGREE -- EXCEPT FOR CRIMES ALLEGING DISTRIBUTION OR POSSESSION WITH INTENT TO DISTRIBUTE CDS OR CDS ANALOG) (3) That defendant or a person with whom he/she conspired did an overt act in pursuance of the conspiracy. If, after consideration of all the evidence you are convinced beyond a reasonable doubt that the State has proven all of these elements, then you must find the defendant guilty of the crime of conspiracy. On the other hand, if you find that the State has failed to prove to your satisfaction beyond a reasonable doubt any one or more of these elements, then you must find the defendant not guilty of the crime of conspiracy. [CHARGE THE FOLLOWING PARAGRAPH WHEN APPROPRIATE] Each offense and each defendant in this indictment should be considered by you separately. The fact that you may find a particular defendant guilty or not guilty of a particular crime should not control your verdict as to any other offense charged against that defendant, and it should not control your verdict as to the charges against any other defendant. 1 See State v. Carbone, 10 N.J. 329 (1952). 2 Under 2C:2-1(b) an omission may under certain circumstances constitute an act. 3 See footnote 2. 4 Where appropriate charge Conspiracy-Renunciation (N.J.S.A. 2C:5-2e) - See Model Charge.

Consequences of a Criminal Guilty Plea NJ

Consequences of a Criminal Guilty Plea

Consequences of a Criminal Guilty Plea 1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s) 2. Do you understand that if you plead guilty: a. You will have a criminal record b. You may go to Jail or Prison. c. You will have to pay Fines and Court Costs. 3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail. 4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing. 5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution. 6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty. 7. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty. 8. You must wait 5-10 years to expunge a first offense. 2C:52-3 9. You could be put on Probation. 10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your driver's license for 6 months - 2years. You must pay a Law Enforcement Officers Training and Equipment Fund penalty of $30. 11. You may be required to do Community Service. 12. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty. 13. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction. 14. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation. 15. You lose the presumption against incarceration in future cases. 2C:44-1 16. You may lose your right to vote. The defense of a person charged with a criminal offense is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of a criminal offense. Jail for Crimes and Disorderly Conduct: If someone pleads Guilty or is found Guilty of a criminal offense, the following is the statutory Prison/Jail terms. NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years; (2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years; (3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years; (4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months. 2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed: a. (1) $200,000.00 when the conviction is of a crime of the first degree; (2) $150,000.00 when the conviction is of a crime of the second degree; b. (1) $15,000.00 when the conviction is of a crime of the third degree; (2) $10,000.00 when the conviction is of a crime of the fourth degree; c. $1,000.00, when the conviction is of a disorderly persons offense; d. $500.00, when the conviction is of a petty disorderly persons offense; If facing any criminal charge, retain an experienced attorney immediately to determine you rights and obligations to the court. Current criminal charge researched by Kenneth Vercammen, Esq. 732-572-0500

CONSENT model jury charge2C:2-10(WHICH PRECLUDES THE INFLICTION OF THE HARM) NJ

CONSENT model jury charge 2C:2-10 (WHICH PRECLUDES

CONSENT model jury charge2C:2-10(WHICH PRECLUDES THE INFLICTION OF THE HARM) (N.J.S.A. 2C:2-10) As part of his/her defense to the charge of _____________________, the defendant contends that he/she is not guilty because the victim consented to the alleged criminal activity and was therefore not harmed in a way that the law seeks to prevent. In considering this contention you should understand that the consent of the victim can be a defense if it precludes the infliction of the harm or evil that the law seeks to prevent under certain limited circumstances which I will describe for you. First, you should know that consent in the law has a meaning very similar to its everyday meaning. It is the victims voluntary and serious agreement or submission to the alleged criminal conduct or the result of that conduct. In order for consent to give rise to a valid defense it must, of course, be given freely and it must be legally effective. Consent can never be legally effective in providing a defense to a criminal charge if: (CHOOSE APPROPRIATE FACTOR(S))[1] (a) the victim was not legally competent to authorize the conduct charged to constitute the offense; or (b) the victim was by reason of (his/her) (choose appropriate factor) youth, mental disease or defect or intoxication either known by the defendant to be unable or was manifestly unable to make a reasonable judgment as to the nature of harmfulness of the conduct charged to constitute an offense; or (c) the victims consent was induced by force, duress or deception of a kind that the law defining the offense seeks to prevent. In determining whether the consent of the victim was freely and voluntarily given, you are advised that consent may be openly expressed, implied, or apparent from the victims willing participation in the activity in question. Further, you may consider all that (he/she) said and did at the particular time and place, all of the surrounding circumstances and whether a normal competent person would freely and seriously consent to the conduct with which the defendant is charged.[2] (IN CASES INVOLVING BODILY HARM INCLUDE THE FOLLOWING) Because this case involves conduct which caused (or threatened to cause) bodily harm as I have previously defined that term for you, there is an additional requirement that must be satisfied before consent can be legally effective and give rise to a valid defense. (CHOOSE APPROPRIATE FACTOR) (1) The bodily harm consented to (or threatened by the conduct consented to) is not serious; or (2) The conduct and the harm are reasonably foreseeable hazards of joint participation in a concerted activity of a kind not forbidden by law; or (3) The consent establishes justification for the conduct under Chapter 3 of the code.[3] In this case, as I have already explained to you, the defendant is charged with a violation of a provision of our criminal law which reads in pertinent part: READ STATUTE This provision of our law was intended to: (DISCUSS THE PURPOSE OF THE STATUTE AND THE HARM OR EVIL IT SEEKS TO PREVENT). Accordingly, you are advised that if the victim was not harmed or threatened in a manner that the statute seeks to prevent because (he/she) actually consented to the alleged criminal conduct, then the defendant has a valid defense. Of course, you are reminded that the State has the burden of proving each element of the offense beyond a reasonable doubt and must also prove beyond a reasonable doubt that the victim did not give (his/her) legally effective consent as I have defined that term for you.[4] Thus, if you find that the State has not proven each element of the offense beyond a reasonable doubt or also has not disproved the defense of consent beyond a reasonable doubt, then you must find the defendant not guilty. If, on the other hand, you are satisfied that the State has proven each element of the offense beyond a reasonable doubt and has also proven beyond a reasonable doubt that the victim did not consent or that (his/her) consent was not legally effective, then you must find the defendant guilty as charged.[5] [1] Supplemental instructions regarding individual factors and code definitions of key terms should be provided where appropriate. [2] State v. Brown, 143 N.J. Super, 571, 577 (Law Div. 1976, affd 154 N.J. Super, 511 (App. Div. 1977). [3] Supplemental instructions regarding justification should be furnished where appropriate. [4] N.J.S.A. 2C:1-13 and N.J.S.A. 2C:1-14h [5] If the defendant claims he mistakenly believed that the victim consented, appropriate instructions on ignorance or mistake, N.J.S.A. 2C:2-4, may be necessary.