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/
Tuesday, December 27, 2016
2C:1-13 Proof Beyond a Reasonable Doubt in NJ
2C:1-13 Proof Beyond a Reasonable Doubt in NJ
Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey.
Proof beyond a reasonable doubt; 2C:1-13. affirmative defenses; burden of proving fact when not an element of an offense a. No person may be convicted of an offense unless each element of such offense is proved beyond a reasonable doubt. In the absence of such proof, the innocence of the defendant is assumed.
b. Subsection a. of this section does not:
(1) Require the disproof of an affirmative defense unless and until there is evidence supporting such defense; or
(2) Apply to any defense which the code or another statute requires the defendant to prove by a preponderance of evidence or such other standard as specified in this code.
c. A defense is affirmative, within the meaning of subsection b.(1) of this section, when:
(1) It arises under a section of the code which so provides; or
(2) It relates to an offense defined by a statute other than the code and such statute so provides; or
d. When the application of the code depends upon the finding of a fact which is not an element of an offense, unless the code otherwise provides:
(1) The burden of proving the fact is on the prosecution or defendant, depending on whose interest or contention will be furthered if the finding should be made; and
(2) The fact must be proved to the satisfaction of the court or jury, as the case may be.
e. When the code or other statute defining an offense establishes a presumption with respect to any fact which is an element of an offense, it has the meaning accorded it by the law of evidence.
f. In any civil action commenced pursuant to any provision of this code the burden of proof shall be by a preponderance of the evidence.
L.1978, c. 95, s. 2C:1-13, eff. Sept. 1, 1979. Amended by L.1979, c. 178, s. 7, eff. Sept. 1, 1979.
2C:1-14. Definitions 2C:1-14. In this code, unless a different meaning plainly is required:
a. Statute includes the Constitution and a local law or ordinance of a political subdivision of the State;
b. Act or action means a bodily movement whether voluntary or involuntary;
c. Omission means a failure to act;
d. Conduct means an action or omission and its accompanying state of mind, or, where relevant, a series of acts and omissions;
e. Actor includes, where relevant, a person guilty of an omission;
f. Acted includes, where relevant, omitted to act;
g. Person, he, and actor include any natural person and, where relevant, a corporation or an unincorporated association;
h. Element of an offense means (1) such conduct or (2) such attendant circumstances or (3) such a result of conduct as
(a)Is included in the description of the forbidden conduct in the definition of the offense;
(b)Establishes the required kind of culpability;
(c)Negatives an excuse or justification for such conduct;
(d)Negatives a defense under the statute of limitations; or
(e)Establishes jurisdiction or venue;
i. Material element of an offense means an element that does not relate exclusively to the statute of limitations, jurisdiction, venue or to any other matter similarly unconnected with (1) the harm or evil, incident to conduct, sought to be prevented by the law defining the offense, or (2) the existence of a justification or excuse for such conduct;
j. Reasonably believes or reasonable belief designates a belief the holding of which does not make the actor reckless or criminally negligent;
k. Offense means a crime, a disorderly persons offense or a petty disorderly persons offense unless a particular section in this code is intended to apply to less than all three;
l.(Deleted by amendment, P.L. 1991, c.91).
m. Amount involved, benefit, and other terms of value. Where it is necessary in this act to determine value, for purposes of fixing the degree of an offense, that value shall be the fair market value at the time and place of the operative act.
n. Motor vehicle shall have the meaning provided in R.S .39:1-1.
o. Unlawful taking of a motor vehicle means conduct prohibited under N.J.S. 2C:20-10 when the means of conveyance taken, operated or controlled is a motor vehicle.
p. Research facility means any building, laboratory, institution, organization, school, or person engaged in research, testing, educational or experimental activities, or any commercial or academic enterprise that uses warm-blooded or cold-blooded animals for food or fiber production, agriculture, research, testing, experimentation or education. A research facility includes, but is not limited to, any enclosure, separately secured yard, pad, pond, vehicle, building structure or premises or separately secured portion thereof.
q. Communication means any form of communication made by any means, including, but not limited to, any verbal or written communication, communications conveyed by any electronic communication device, which includes but is not limited to, a wire, radio, electromagnetic, photoelectric or photo-optical system, telephone, including a cordless, cellular or digital telephone, computer, video recorder, fax machine, pager, or any other means of transmitting voice or data and communications made by sign or gesture.
Amended 1979, c.178, s.8; 1991, c.91, s.142; 1993, c.219, s.1; 1995, c.20, s.1; 2001, c.220, s.1.
2C:2-1 Requirement of voluntary act; omission as basis of liability; possession as an act
2C:2-1. Requirement of Voluntary Act; Omission as Basis of Liability; Possession as an act. a. A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable. A bodily movement that is not a product of the effort or determination of the actor, either conscious or habitual, is not a voluntary act within the meaning of this section.
b. Liability for the commission of an offense may not be based on an omission unaccompanied by action unless:
(1) The omission is expressly made sufficient by the law defining the offense; or
(2) A duty to perform the omitted act is otherwise imposed by law, including but not limited to, laws such as the Uniform Fire Safety Act, P.L. 1983, c.383 (C. 52:27D-192 et seq.), the State Uniform Construction Code Act, P.L. 1975, c.217 (C. 52:27D-119 et seq.), or any other law intended to protect the public safety or any rule or regulation promulgated thereunder.
c. Possession is an act, within the meaning of this section, if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession.
Amended 1997, c. 180, s.1.
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;
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