Kenneth Vercammen Law Office. 732-572-0500. Edison, NJ.
Kenneth Vercammen is a Middlesex County trial attorney who has published 130 articles in national and New Jersey publications on Criminal Law and litigation topics. Appointments can be scheduled at 732-572-0500. He is author of the ABA's book "Criminal Law Forms". 2053 Woodbridge Avenue - Edison, NJ 08817 http://www.njlaws.com/
Monday, May 9, 2016
Municipal Court officer is Not an Ordinary Advocate and May Dismiss Cases
The duty of the prosecutor is to see that justice is done. Not just prosecute every case. The following is set forth in the New Jersey Court Rules, Appendix 2, Part VII, Guidelines for Operation of Plea Agreements in the Municipal Court of New Jersey, Gann Edition page 1999, Year 2000 Edition:
GUIDELINE 3. Prosecutor's Responsibilities. Nothing in these Guidelines should be construed to affect in any way the prosecutor's discretion in any case to move unilaterally for an amendment to the original charge or a dismissal of the charges pending against a defendant if the prosecutor determines and represents on the record the reasons in support of the motion.
(Adopted October 6, 1997, to be effective February 1, 1998.) NJ Court Rules, Year 2000 Edition Gann, p. 1909.
Moreover, Judge Pressler in the comments for Part VII, Appendix writes: Plea agreements are to be distinguished from the discretion of a prosecutor to charge or unilaterally move to dismiss, amend or otherwise dispose of a matter. It is recognized that it is not the municipal prosecutor's function merely to seek convictions in all cases. The prosecutor is not an ordinary advocate. Rather, the prosecutor has an obligation to defendants, the State and the public to see that justice is done and truth is revealed in each individual case. The goal should be to achieve individual justice in individual cases. In discharging the diverse responsibilities of that office, a prosecutor must have some latitude to exercise the prosecutorial discretion demanded of that position. It is well established, for example, that a prosecutor should not prosecute when the evidence does not support the State's charges. Further, the prosecutor should have the ability to amend the charges to conform to the proofs.
Recently in State v. Hawk, _______ NJ Super ___________, (App. Div. 2000) A-2784-98T5; the court held:
"A prosecutor holds a unique position in the legal community in that her primary duty is not to obtain convictions, "but to see that justice is done." State v. Ramseur, 106 N.J. 123, 320 (1987). Consequently, while a prosecutor must advocate a position vigorously, there are boundaries to such conduct."
A private prosecutor is not permitted, unless a detailed attorney certification is submitted and rules upon first by the Court R 7:8-7(b). State v. Storm, 278 NJ Super. 287 (App. Div. 1994), aff'd 141 NJ 245) 1995 prohibited private prosecutors unless there is no conflict and no financial interest in the outcome.
The roles of the judge, prosecutor and defense attorney are distinct. The attorneys are advocates for the respective sides, while the judge is to be the neutral adjudicator. State v. Avena, 281 N.J. Super. 327, 336 (App. Div. 1995). The judge must remain impartial and detached and may not "take sides". State v. Santiago, 267 N.J. Super. 432, 437 (Law Div. 1993). The trial judge possesses a broad discretion as to his or her participation in the trial, but simultaneously must also maintain an atmosphere of impartiality. State v. Ray, 43 N.J. 19, 25 (1964). In DWI, criminal and other serious cases, court administrators sometimes refuse to adjourn cases where the State Police has failed to provide the mandatory discovery to the Prosecutor. A defense attorney who has paid for, but not received discovery, should not be forced by a court administrator to waste the attorney's time and client's money by traveling to a court to ask for an adjournment which is the fault of either the State Police or the Prosecutor. Defense attorneys should not have to go through the additional cost and work of filing motions to compel discovery.
Preparation of the State's case is clearly a prosecutorial function and is a responsibility that cannot be shifted to others. Any attempt by the prosecutor to place this function upon the clerk, who is an impartial judicial officer, is improper. State v. Perkins, 219 N.J. Super. 121, 125, 529 A.2d 1056 (Law Div. 1987).
MUNICIPAL COURTS ARE BARRED FROM HANDLING DISCOVERY REQUESTS OR ASSISTING THE POLICE OR PROSECUTORS IN PREPARING THE STATE'S CASE.
Canon 1. A Judge Should Uphold the Integrity and Independence of the Judiciary An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should personally observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective. A court should not be "assisting" the Prosecutor to prosecute people or helping the State prepare it's cases. The integrity also is required of court administrators Canon 2. A Judge Should Avoid Impropriety and the Appearance of Impropriety in All Activities
A. A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. The court staff also cannot assist the Prosecutor. It is the appearance of impropriety for the Court to handle discovery.
Canon 3. A Judge Should Perform the Duties of Judicial Office Impartially and Diligently
Court staff also must be impartial. They cannot be impartial to help the police or prosecutor A municipal "prosecutor, like the [municipal] judge, must be impartial." State v. Storm, 141 N.J. 245, 254 (1995). Because of the requirement of impartiality, the municipal judge is prohibited from practicing criminal law. R. 1:15-1.
The roles of the judge, prosecutor and defense attorney are distinct. The attorneys are advocates for the respective sides, while the judge is to be the neutral adjudicator. State v. Avena, 281 N.J. Super. 327, 336 (App. Div. 1995). The judge must remain impartial and detached and may not "take sides". State v. Santiago, 267 N.J. Super. 432, 437 (Law Div. 1993). The trial judge possesses a broad discretion as to his or her participation in the trial, but simultaneously must also maintain an atmosphere of impartiality. State v. Ray, 43 N.J. 19, 25 (1964). See STATE OF NEW JERSEY v TROY SWINT, __ NJ Super. ___ (App. Div. ) A-5131-97T3
Preparation of the State's case is clearly a prosecutorial function Preparation of the State's case is clearly a prosecutorial function and is a responsibility that cannot be shifted to others. Any attempt by the prosecutor to place this function upon the clerk, who is an impartial judicial officer, is improper. State v. Perkins, 219 N.J. Super. 121, 125, 529 A.2d 1056 (Law Div. 1987). In State v. Polasky, 216 N.J. Super. 549 (Law Div 1986) Judge Haines discussed the municipal prosecutor's role in connection with discovery, and added: There is further reason for requiring the prosecutor to be responsible. In our court system, the prosecutor, contrary to an ordinary advocate, has a duty to see that justice is done. State v. D'Ippolito, 19 N.J. 450, 549-550 [117 A.2d 592] (1955). He is not to prosecute, for example, when the evidence does not support the State's charges. Consequently, the prosecutor has an obligation to defendants as well as the State and the public. Our discovery rules implicate that obligation, an obligation which can be discharged by no one else. [216 N.J. Super. at 555, 524 A.2d 474]
As set forth in State v Prickett; 240 NJ Super 139, 146 (App. Div 1990), it is the municipal prosecutor who selects the State's witnesses, requests postponements for the State, complies with discovery rules, requests dismissal if the State cannot make out a case, and does all else necessary to prepare and present the State's cases in the municipal court. See also Position 3.11, "The Role of the Prosecutor, Report of the Supreme Court Task Force on the Improvement of Municipal Courts (1985)".
We have the problem of a part-time municipal prosecutor responsible for preparing cases for trial who abandons a prosecutorial function to the municipal court clerk who assumes it. R. 1:9-1 indicates that the court clerk may issue a subpoena, but makes no provision for service by the court clerk nor does it give the clerk the authority to excuse any witness absent instructions from the municipal court judge. The municipal court clerk should not become involved in the preparation of the State's case. See N.J. Municipal Court Clerks' Manual, Â§2.3, pp. 69-70 (A.O.C. 1985) which states: "The municipal prosecutor has the responsibility for determining what witnesses he wants and of preparing his own subpoenas. However, if the municipal prosecutor lacks secretarial help, court personnel may assist in typing the subpoenas." State v Prickett 240 NJ Super at 145. However, the court should not ever act as the prosecutor's assistant. The court must be neutral. Courts are never permitted to handle discovery requests ever. That would be a violation of a defendant's right to an impartial court. Because the State is the municipal prosecutor's client, a failure to discharge the obligations of his office is a violation of a prosecutor's professional responsibility to represent the client diligently. When a prosecutor has available relevant evidence bearing on a prosecution, and the prosecutor's failure to present that evidence in the course of trial results in acquittal, that prosecutor has not diligently discharged his or her duty to prepare and present the State's case. Furthermore, when the failure to prepare for trial and present relevant evidence prejudices the State's case, the prosecutor's deviation from that duty may be so severe as to constitute gross negligence. Matter of Segal 130 NJ 468 (1992)
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 drivers license for 6 months - 2 years. 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;