2C:35-10 Marijuana 2C:35-10 pot charges CDS
Kenneth Vercammen’s Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey.
The Municipal Courts of New Jersey have jurisdiction to hear the following drug-related offenses:
NJSA 2C:5-10(a)(4), possession of 50g or less of marijuana or 5g or less of hashish;
NJSA 2C:35-10(b), using or being under the influence of CDS;
NJSA 2C:35-10(c), failure to deliver CDS to police;
NJSA 2C:36-2, possession of drug paraphernalia
Violation of these statutes constitute disorderly person offenses. If convicted, the court may impose a $500.00 Drug Enforcement Reduction penalty and a $50.00 lab fee for each CDS charge. The court has discretion to fine a defendant up to $1,000 and/or incarceration for up to six months. The $50.00 VCCB penalty also must be imposed.
Moreover, the court must suspend the defendants drivers license for a time period between six months and two years. In addition, probation for up to two years, drug counseling, periodic urine testing, alcohol and/or psychiatric counseling and community service may be imposed.
If you elect to initially plead not guilty, your attorney will send a discovery letter/letter of representation to both the Municipal Prosecutor and the Municipal Court Clerk. If you have a drug problem, it is recommended that you attend a substance abuse treatment programs to seek help for any addiction. Proof of attendance of such a program is of benefit at sentencing or in obtaining an application for conditional discharge.
New Jersey State statute N.J.S.A. 2C: 36A-1 provides that a person not previously convicted of a drug offense and who has not previously been granted supervisory treatment under 24:21-27, 2C:43-12 or 2C: 36A-l may apply for a conditional discharge. The court upon notice to the prosecutor and subject to 2C: 36A-l(c) may on the motion of the defendant or the court, suspend further proceedings and place the defendant on supervisory treatment (i.e., probation, supervised or unsupervised attendance at Narcotics Anonymous, etc.).
Since the granting of a conditional discharge is optional to the court, you should be prepared to prove, through letters, documents, or even witnesses, that the defendants continued presence in the community or in a civil treatment program, will not pose a danger to the community.
You should be prepared to convince the court that the terms and conditions of supervisory treatment will be adequate to protect the public and will benefit the defendant by serving to correct any dependence on or use of controlled substances. The defendant must be required to pay a $45.00 application fee, plus the mandatory $500.00 DEDR penalty, and $50.00 lab fee. The court further has the option to suspend a defendants drivers license between six months and two years.
The conditional discharge period is also between 1 year and two years. If the defendant is convicted of a drug offense during the CD period or violates the conditions set by the court, the prosecution resumes. The defendant may even apply for a conditional discharge after he/she is found guilty, but before sentence is imposed. If the CD is granted at this point in the proceeding, the 6 to 24 month license suspension is mandatory.
A timely Motion to Suppress Evidence must be made pursuant to Rule 3:5-7. The court rules have been amended to provide the Suppression Motion can be held directly in the Municipal Court. Your attorney can subpoena witnesses, sometimes even serving a subpoena duces tecum on the arresting officer to compel him to bring to court the object allegedly observed in plain view. Credibility will be tested when the object that was claimed to be in plain view inside a car is actually only one-half inch long. Cross-examination is very important.
The Municipal Court prosecutor is responsible for providing discovery. Rules 3:13-3, 7:4-2, State v Polasky, N.J. Super. 549 (Law Div. 1986); State v Tull, 234 N.J. Super. 486 (Law Div. 1989); State v Ford, 240 N.J. Super. 44 (App. Div. 1990). The State must prove the substance seized was a controlled dangerous substance (CDS).
To prove the substance is CDS, either the lab technician who examined the substance must be called testify, or the State will have to admit the lab certificate prepared pursuant to N.J.S.A. 2C:35-19. If the State intends to introduce the lab certificate at the trial, a notice of an intent to proffer that certificate and all reports relating to the analysis of the CDS shall be served on defense counsel at least 20 days before the proceeding begins. This includes an actual copy of the lab certificate.
Within 10 days of receipt, the Defense counsel must notify the Prosecutor in writing. This will not only alert the Prosecutor to the Defendants objections concerning the admission of the lab certificate into evidence, but also set forth grounds for the objection, 2C:35-19c. Failure by defense counsel to timely object shall constitute a waiver of any objection to the certificate, thus, the certificate will be submitted into evidence.
Pre-Trial Motions we usually file:
1) Suppress Evidence
3) Exclude Lab Tests
5) Reciprocal Discovery
7) Reciprocal discovery
8) Speedy Trial
9) Notice of Objection to Lab Reports
At a time to be set by the Court, Defendant will move for Orders pursuant to R. 3:10‑5, 3:13‑1, and 7:7-7, as follows and requests oral argument pursuant to R. 1:6‑2(d) to preserve all of defendant's rights and defenses:
1) Suppress Evidence. Defendant will move to suppress, evidence obtained by the State during its investigation of case, pursuant to R. 3:5‑7 and 7:5-2, because evidence‑‑ie defendant's person, breath, blood, and/or other things‑‑was seized unlawfully, without a warrant and contrary to U.S. Const. Amends. IV and XIV and N.J. Const. Art.1, para.7. Defendant believes the State will use this evidence in proceedings before this Court on the above captioned charges.
2) Miranda/Privilege. Defendant will move to exclude statements by, and evidence obtained from, Defendant during the State's investigation of this case because the statements and evidence (a) create substantial danger of undue prejudice to Defendant contrary to Evid.R. 403 (previously Evid.R. 4), (b) are privileged under Evid.R. 503 (previously Evid.R. 25), and (c) were obtained contrary to U.S. Const. Amends. V, VI, IX, and XIV, NJ Constitution 1, paras.1, 10, and 2], and requirements stated in Miranda v. Arizona, 384 US. 486, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and its progeny.
3) Exclude Drug Tests. If police used a drug testing instrument in this case, Defendant will move to exclude evidence(‑ of drug test results because (a) the Attorney General failed to exercise administrative authority and prescribe methods and procedures for periodic inspection of drug testing instruments as required by statute, and (b) without such properly prescribed methods and procedures, the State cannot lay the foundation needed for admission of drug test results into evidence at trial.
4) Discovery. 7.1 Defendant requests that the State provide paper copy of any relevant discovery as required by Rule 3:13-3, Rule 7:7-7(b) . Defendant further requests that the Court enter a DISCOVERY ORDER, provided the prosecutor neither sends notice of specific objections in writing pursuant to R. 3:1‑4 nor moves timely for a protective order pursuant to R. 3:13‑3(d). . If the State fails to provide discovery as requested herein, Defendant may move either before or during trial pursuant to R. 3:13‑3(f), R. 3:17‑4, and Evid.R. 807 (previously Evid.R 64), as applicable, for an Order (a) permitting discovery or inspection of undisclosed materials, (b) granting a continuance, (c) prohibiting introduction in evidence of undisclosed material, (d) monetary sanctions, (e) dismissal of the charges, and (f)such other order as the Court deems appropriate.
5) Reciprocal Discovery. 8.1. Defendant may call certain fact witnesses to testify, inter alia, that: they have known Defendant, b) they saw Defendant before or after police saw Defendant, c) Defendant was not under the influence of drugs, d)and e) there was no articulable suspicion that Defendant had violated the law. The witnesses will be named following/ after the state provides complete discovery.
6) Defendant may call the following experts to testify- Expert Dr. Richard Saperstein, and/or Others to be provided if and when retained following receipt of the state's expert.
7) Defendant may use demonstrative and documentary evidence, which the State may inspect and copy or photograph after paying reasonable expenses therefor: a) photographs c) video e) maps g) pharmacy records h) films d) diagrams f) medical/hospital h) weather records
8) Speedy Trial. Defendant demands a speedy trial pursuant to U.S. Const. Amend. VI and N.J. Const. Art.1, para.10.
9) Notice of Objection. If the State gives notice of intent to proffer a certificate executed by a laboratory employee pursuant to N.J.S. 2C:35‑19c, Defendant hereby objects to it on the grounds that Defendant intends to contest at trial the composition, quality, and quantity of substances submitted to the laboratory for analysis.
The burden of primary possession/constructive possession remains on the State. Plea bargaining is not permitted in Municipal Court CDS cases (while it is available in such varied charges as murder, careless driving, or the burning of old tires). The State must prove knowledge or purpose on the part of the defendant.