Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey.
If someone is charged with Criminal terroristic threats, the judge will read to the jurors the following Jury Instructions of the Law:
The indictment charges the defendant with committing terroristicthreats. The pertinent part of our statute is as follows: (CHOOSE APPLICABLE ALTERNATIVE)
(1) A person is guilty of a crime if he threatens to commit any crime of violence with the purpose to terrorize another or in reckless disregard of the risk of causing such terror.
(2) A person commits a crime if he threatens to commit a crime of violence with the purpose to cause evacuation of a building, place of assembly or facility of public transportation or otherwise to cause serious public inconvenience or in reckless disregard of the risk of causing such evacuation or inconvenience.
The prosecution must prove the following elements beyond a reasonable doubt:
1. The defendant made a threat, or threatened to commit a crime of violence against (the victims name).
(CHOOSE APPLICABLE ALTERNATIVE)
2. That the threat to commit a crime of violence was with the purpose to terrorize another or in reckless disregard of the risk of causing such terror or
3. That the threat to commit a crime of violence was to cause evacuation of a building, place or assembly or facility of public transportation or otherwise to cause serious public inconvenience or in reckless disregard of the risk of causing such evacuation or inconvenience.
4. 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 to cause such a result.
A person acts purposely with respect to the attendant circumstance if the person is aware of the existence of such circumstances or the person believes or hopes that they exist. With purpose, design, with design, or equivalent terms have the same meaning. A person acts recklessly with respect to the nature of (his/her) conduct when the person consciously disregards a substantial and unjustifiable risk that the material element exists or will result from (his/her) conduct. The risk must be of such a nature and degree, that considering the nature and purpose of the actors conduct and the circumstances known to the actor, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actors situation. In other words, in order for you to find the defendant acted recklessly, the State must first prove beyond a reasonable doubt that the defendant was aware of this substantial and unjustifiable risk. In addition, the State must prove that the defendant consciously disregarded this risk. For you to conclude that the defendant acted recklessly, you must find that this disregard was a gross deviation from the way a reasonable person would have conducted (himself/herself) in the situation. The gist of the offense is that the words or actions used by the defendant are of such a nature to convey the menace or fear of a crime of violence to the ordinary hearer or individual. The crime of violence is that the words or actions used by the defendant are of such a nature to convey the menace or fear of a crime of violence to the ordinary hearer or individual.
The crime of violence that is alleged by the prosecution that the defendant threatened is (set forth and define appropriate crime of violence alleged).
It is not necessary that the victim was terrorized (or that there was actually an evacuation of a building, place of assembly or facility of public transportation.) It is not a violation of this statute if the threat expresses only a fleeting anger or that the threat was merely with the intent to alarm. If the State has failed to prove beyond a reasonable doubt any one of the elements that have been described to you, you must find the defendant not guilty. If the State has proven all the elements beyond a reasonable doubt, then you should find the defendant guilty.
2C:12-3. Terroristic threats a. A person is guilty of a crime of the third degree if he threatens to commit any crime of violence with purpose to terrorize another or to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or in reckless disregard of the risk of causing such terror or inconvenience.
b. A person is guilty of a crime of the third degree if he threatens to kill another with purpose to put him in imminent fear of death under circumstances reasonably causing the victim to believe the immediacy of the threat and the likelihood that it will be carried out.
L.1978, c. 95, s. 2C:12-3, eff. Sept. 1, 1979; L.1981, c. 290, s. 15, eff. Sept. 24, 1981.
2C:12-10. Definitions; stalking designated a crime; degrees 1. a. As used in this act:
(1)Course of conduct means repeatedly maintaining a visual or physical proximity to a person or repeatedly conveying, or causing to be conveyed, verbal or written threats or threats conveyed by any other means of communication or threats implied by conduct or a combination thereof directed at or toward a person.
(2)Repeatedly means on two or more occasions.
(3)Immediate family means a spouse, parent, child, sibling or any other person who regularly resides in the household or who within the prior six months regularly resided in the household.
b.A person is guilty of stalking, a crime of the fourth degree, if he purposefully or knowingly engages in a course of conduct directed at a specific person that would cause a reasonable person to fear bodily injury to himself or a member of his immediate family or to fear the death of himself or a member of his immediate family.
c.A person is guilty of a crime of the third degree if he commits the crime of stalking in violation of an existing court order prohibiting the behavior.
d.A person who commits a second or subsequent offense of stalking against the same victim is guilty of a crime of the third degree.
e.A person is guilty of a crime of the third degree if he commits the crime of stalking while serving a term of imprisonment or while on parole or probation as the result of a conviction for any indictable offense under the laws of this State, any other state or the United States.
f.This act shall not apply to conduct which occurs during organized group picketing.
L.1992,c.209,s.1; amended 1996, c.39, s.1; 1998, c. 17, s.3; 1999, c.47, s.1; 2001, c.220, s.2.
2C:12-10.1. Conviction for stalking, permanent restraining order
3. a. A judgment of conviction for stalking shall operate as an application for a permanent restraining order limiting the contact of the defendant and the victim who was stalked.
b. A hearing shall be held on the application for a permanent restraining order at the time of the verdict or plea of guilty unless the victim requests otherwise. This hearing shall be in Superior Court. A permanent restraining order may grant the following specific relief:
(1) An order restraining the defendant from entering the residence, property, school, or place of employment of the victim and requiring the defendant to stay away from any specified place that is named in the order and is frequented regularly by the victim.
(2) An order restraining the defendant from making contact with the victim, including an order forbidding the defendant from personally or through an agent initiating any communication likely to cause annoyance or alarm including, but not limited to, personal, written, or telephone contact with the victim, the victims employers, employees, or fellow workers, or others with whom communication would be likely to cause annoyance or alarm to the victim.
c. The permanent restraining order entered by the court subsequent to a conviction for stalking as provided in this act may be dissolved upon the application of the stalking victim to the court which granted the order.
d. Notice of permanent restraining orders issued pursuant to this act shall be sent by the clerk of the court or other person designated by the court to the appropriate chiefs of police, members of the State Police and any other appropriate law enforcement agency or court.
e. Any permanent restraining order issued pursuant to this act shall be in effect throughout the State, and shall be enforced by all law enforcement officers.
f. A violation by the defendant of an order issued pursuant to this act shall constitute an offense under subsection a. of N.J.S.2C:29-9 and each order shall so state. Violations of these orders may be enforced in a civil or criminal action initiated by the stalking victim or by the court, on its own motion, pursuant to applicable court rules. Nothing in this act shall preclude the filing of a criminal complaint for stalking based on the same act which is the basis for the violation of the permanent restraining order.
Rule 1:11-2 of the Rules of Professional Conduct indicate a retainer letter or written statement of fees is required for new clients. I also provide all my clients with written information explaining how to appear in court, information on surcharges, information on points, and information regarding substance abuse treatment, if applicable.
Once we receive our retainer (are paid), we begin work right away. Usually while the client is still in the office, we prepare a discovery letter on the computer to the prosecutor/district attorney and court and hand a copy to the client. We occasionally call the court to advise them that we will be handling the case and to inquire who handles discovery. We check the Lawyers Diary to determine who are the judges and prosecutor/district attorneys for the county or town. It is important to learn about the judge and the prosecutor.
We require a great deal of cooperation from our clients in an effort to help keep their costs reasonable. We require our clients to take photographs of accident sites and prepare diagrams and provide us with the names, addresses, and telephone numbers of witnesses.
I recommend that my clients provide me with a list of between 10 to 15 reasons why they should not go to jail and why court should impose the minimum license suspension. We recommend they obtain a Motor Vehicle Abstract. This provides us with information for mitigation of penalties and also provides information to be considered by the judge in sentencing.
3. Post Interview Work
Many states have programs for first time offenders who have never previously been arrested or previously convicted of a criminal offense. Again, to avoid embarrassment it is a good idea to speak with the prosecutor/ district attorney and the police officer because they may have a criminal abstract to indicate that the client is not eligible for a diversions type program. We also make a Motion to Suppress where there is a question regarding the validity of a stop or search. Any other Motions to Dismiss should be made in writing such as statue of limitations or lack of jurisdiction.
Oftentimes in cases that deal with just one triable issue such as the admissibility of a blood test result in alcohol or drugs, we can make a Motion in Limine or suggest a pre-trial conference. It is often a good idea to try to know how the judge will decide in order to save us a three-hour trial on a complicated case. If the court rules against us in the Motion in Limine we can enter a guilty plea contingent upon reserving your right to appeal on that one issue.
4. Discovery Phase
Oftentimes we do not receive all of the discovery that we request. We send a letter to the prosecutor requesting additional discovery and request that the discovery be provided within 10 days. If we do not receive the discovery with 10 days then we prepare a Motion to Compel Discovery.
In the case involving essential witnesses, we occasionally write to the witnesses and ask them to call us so that we can find out what really happened. If possible I have a law clerk call up after we send the initial letter. The attorney cannot testify if the witness provides an inconsistent statement but our law clerks can testify. I sometimes speak to friendly witnesses myself later to make a decision to determine whether or not the witnesses are credible.
Upon receiving discovery, we forward a photocopy of all discovery to our client. We then discuss with the client whether or not they have a reasonable prospect of winning.
In drunk driving cases we review the videotape with the client prior to the trial date and sometimes make arrangements to retain an expert.
5. Preparing for Court
If it is a drug case, we should make an objection to the entry of the lab certificate as evidence at trial. We are also under a responsibility to provide any reciprocal discovery to the prosecutor. Occasionally, in a court where there is only one prosecutor you should call the criminal court prosecutor ahead of time to see if a matter can be worked out or plea bargained. Some Criminal prosecutors in lower courts work part time and are not compensated for the many telephone calls they get in their offices.
If we discover a favorable case, we make a copy for the judge, prosecutor, and client. Never assume the part time prosecutor or judge is familiar with all the laws. We can prepare a Subpoena ad Testificandum for witnesses to testify and Subpoena Duces Tecum for witnesses to bring documents. We have our clients hand deliver the Subpoenas and write out their own check for the subpoena fees. It is better to be over-prepared than under-prepared.
Over the years I have made it a practice to build up files on particular legal subjects with complete case law. I now have files for drunk driving, driving while suspended, drug possession, assault, and careless driving.
When we receive the hearing notice we send a follow up reminder to the client to be on time, bring all papers and call 24 hours ahead to confirm the case is still on the calendar. The client should be prepared and look neat. The Grateful Dead and Budweiser T-Shirts should be replaced with something that looks presentable. They should have their pregnant wives sitting next to them.
Preparation is the key to winning cases or convincing the prosecutor of exceptional defenses. Upon arrival at court, we will attempt to ascertain if the police officer is available. Sometimes the police officer is on vacation, retired, or suspended. This may assist your ability to work out a satisfactory arrangement.
There is no prohibition against speaking with States witnesses in a non-threatening way. Outside of the courtroom, I usually call out the name of the non-law enforcement States witnesses to determine what their version of the facts are. If we have an excellent trial issue but believe the judge is going to rule against us, we bring an appeal notice and file it with the Court on the Record. I keep in my car blank forms for Order to Compel Discovery, Order Mark Try or Dismiss, Order to be Relieved, and an Appeal Notice.
6. Plea to a Lesser Defense
If the client is going to enter a guilty plea to an offense, it is important they understand what the offense is and put a factual basis on the record. The Judge will be angry if a person is pleading guilty to a drunk driving case and the judge asked them what he had to drink, the person insists he only had one beer. The judge will send us back to our seat and must refuse to take the guilty plea unless an adequate factual basis is put on the record.
Having previously obtained for my clients their favorable background, I usually put on the record reasons why the judge should give them the minimum penalties.
Letters of reference and character reference letters are helpful in cases where the judge has wide discretion in his sentencing. After the client pleads guilty, it is a good idea to also ask the client on the record if he has any questions of myself or of the court.
Whether or not we have a trial or there is a plea to reduce the charge, I wish to walk out knowing I did the best you could for the client. Even if I lose, I want to have been such an articulate advocate that the client walks out saying my attorney is great but the judge is wrong. We try to be innovative and prepare new arguments. We handle a substantial amount of criminal court and personal injury cases and have put case law and certain legal defenses on our website: www.NJLaws.com.
About the Author: Kenneth A. Vercammen is an Edison, Middlesex County trial attorney who has published 125 articles in national and New Jersey publications on criminal court and litigation topics.