Criminal Articles from NJLaws Website and Be Not Guilty

2C:33-4. Harassment.

2011-08-11T12:47:00.001-07:00

2C:33-4. Harassment.

Except as provided in subsection e., a person commits a petty disorderly persons offense if, with purpose to harass another, he:

a.Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;

b.Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or

c.Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

A communication under subsection a. may be deemed to have been made either at the place where it originated or at the place where it was received.

d.(Deleted by amendment, P.L.2001, c.443).

e.A person commits a crime of the fourth degree if, in committing an offense under this section, he was serving a term of imprisonment or was on parole or probation as the result of a conviction of any indictable offense under the laws of this State, any other state or the United States.

2C:14-4 Lewdness.

2011-08-11T12:40:00.000-07:00

2C:14-4 Lewdness

a. A person commits a disorderly persons offense if he does any flagrantly lewd and offensive act which he knows or reasonably expects is likely to be observed by other nonconsenting persons who would be affronted or alarmed.

b. A person commits a crime of the fourth degree if:

(1) He exposes his intimate parts for the purpose of arousing or gratifying the sexual desire of the actor or of any other person under circumstances where the actor knows or reasonably expects he is likely to be observed by a child who is less than 13 years of age where the actor is at least four years older than the child.

(2) He exposes his intimate parts for the purpose of arousing or gratifying the sexual desire of the actor or of any other person under circumstances where the actor knows or reasonably expects he is likely to be observed by a person who because of mental disease or defect is unable to understand the sexual nature of the actor's conduct.

c. As used in this section:

"lewd acts" shall include the exposing of the genitals for the purpose of arousing or gratifying the sexual desire of the actor or of any other person.

2C:20-2.1. Additional penalties for theft or unlawful taking of motor vehicle

2011-08-11T11:26:00.001-07:00

2C:20-2.1. Additional penalties for theft or unlawful taking of motor vehicle
1. a. In addition to any other disposition authorized by law, a person convicted under the provisions of this chapter of theft or unlawful taking of a motor vehicle shall be subject:

(1) For the first offense, to a penalty of $500.00 and to the suspension or postponement of the person's license to operate a motor vehicle over the highways of this State for a period of one year.

(2) For a second offense, to a penalty of $750.00 and to the suspension or postponement of the person's license to operate a motor vehicle over the highways of this State for a period of two years.

(3) For a third or subsequent offense, to a penalty of $1,000.00, and to the suspension or postponement of the person's license to operate a motor vehicle over the highways of this State for 10 years.

b. The suspension or postponement of the person's license to operate a motor vehicle pursuant to subsection a. of this section shall commence on the day the sentence is imposed. In the case of any person who at the time of the imposition of sentence is less than 17 years of age, the period of the suspension of driving privileges authorized herein, including a suspension of the privilege of operating a motorized bicycle, shall commence on the day the sentence is imposed and shall run for a period as fixed by the court of one year for a first offense, two years for a second offense or 10 years for a third offense calculated from the day after the day the person reaches the age of 17 years. If the driving privilege of any person is under revocation, suspension, or postponement for a violation of any provision of this Title or Title 39 of the Revised Statutes at the time of any conviction or adjudication of delinquency for a violation of any offense defined in this chapter or chapter 36 of this Title, the revocation, suspension, or postponement period imposed herein shall commence as of the date of termination of the existing revocation, suspension, or postponement.

Upon conviction the court shall collect forthwith the New Jersey driver's licenses of the person and forward such license or licenses to the Director of the Division of Motor Vehicles along with a report indicating the first and last day of the suspension or postponement period imposed by the court pursuant to this section. If the court is for any reason unable to collect the license or licenses of the person, the court shall cause a report of the conviction or adjudication of delinquency to be filed with the director. That report shall include the complete name, address, date of birth, eye color, and sex of the person and shall indicate the first and last day of the suspension or postponement period imposed by the court pursuant to this section. The court shall inform the person orally and in writing that if the person is convicted of personally operating a motor vehicle during the period of license suspension or postponement imposed pursuant to this section the person shall, upon conviction, be subject to the penalties set forth in R.S.39:3-40. A person shall be required to acknowledge receipt of the written notice in writing. Failure to receive a written notice or failure to acknowledge in writing the receipt of a written notice shall not be a defense to a subsequent charge of a violation of R.S.39:3-40. If the person is the holder of a driver's license from another jurisdiction, the court shall not collect the license but shall notify the director who shall notify the appropriate officials in the licensing jurisdiction. The court shall, however, in accordance with the provisions of this section, revoke the person's non-resident driving privileges in this State.

c. All penalties provided for in this section shall be collected as provided for the collection of fines and restitutions in section 3 of P.L.1979, c.396 (C.2C:46-4), and shall be distributed in accordance with the provisions of N.J.S.2C:64-6 as if the collected monies were the proceeds of property forfeited pursuant to the provisions of chapter 64. However, the distributed monies are to be used for law enforcement activities related to auto theft.

2C:20-2 Consolidation of theft and computer criminal activity offenses; grading; provisions applicable to theft generally.

2011-08-11T11:25:00.001-07:00

New Jersey INTENSIVE SUPERVISION PROGRAM

2011-08-11T11:16:00.000-07:00

New Jersey

INTENSIVE SUPERVISION PROGRAM

A WAY BEYOND THE WALL

Are you interested in changing your life?

Do you want to become a different person?

If so, then perhaps the Intensive Supervision Program (ISP) is for you. ISP is a carefully designed program to help you change “persons, places and things” that might have caused you problems in the past.

Your ISP officer will work with you so you can successfully complete the program. ISP has expectations and restrictions and you will have to learn to say “no”. But, if you really want to change, you will succeed on ISP.

If accepted into ISP, you can expect to be on the program for at least 16 months. If your original sentence was for more than five years, and/or if you violate any program expectation, you can expect to be under supervision longer.

Since 1983, more than 7,600 participants have successfully completed the program. You too can be an ISP graduate.

BASIC QUESTIONS

Am I eligible to apply for ISP?

Program guidelines permit all persons sentenced to state prison to be eligible for program consideration except those applicants convicted of a homicide, sex offense, crime of first degree, robbery, or organized crime. People who have failed Drug Court for violation of special probation and have been sentenced to state prison pursuant to N.J.S.A. 2C:35-14 are ineligible. Those convicted of Unlawful Possession of a Weapon (N.J.S.A. 2C:39-5(h)) are also ineligible. Also, if you are sentenced to a parole ineligibility (stip) you are eligible after that period has been satisfied. You must live in New Jersey, but if you don't have a New Jersey residence, you should still apply. ISP might be able to find you a place to live.

Who decides whether I get into ISP?

Your application will be reviewed by a screening board that might recommend your release to a three member panel of ISP judges. The judges make the final decision. If accepted by the judges, you will be immediately released from prison.

How do I apply?

You fill out an application, which is available at all county jails and state prisons, and send it to ISP. Be sure to answer all questions, including who will be your community sponsor. If you do not have answers to all the questions, send the application with as much information as you have.

How can I help get accepted?

If you are interviewed for ISP, you will be asked to write a plan explaining what you are going to do to help you avoid problems in the future. What you put in your plan is important. The people reviewing your application will closely review your plan. You should be able to do the things you say you can do.

What happens if I get accepted?

You will be released from prison under the conditions of ISP. You will have to live up to all the details in your plan. Whether you remain in the program depends on you. Your community sponsor and ISP officer will help you, but you must make sure you do what you agreed to do.

MAJOR EXPECTATIONS OF ISP

 Obtain a job within 30 days of your release from prison.

 Obey the 6 p.m. curfew until employed. The curfew can be changed to between 8 and 10 p.m. at the discretion of your ISP officer.

 Support your dependents and meet family responsibilities.

 Participate in treatment and counseling programs including AA, NA, and/or GA.

 Do not leave New Jersey without permission from your ISP officer.

 Do not carry any firearm or other weapons.

 Allow your ISP officer to visit your home and search you, or places or things under your control.

 Do not use illegal drugs or alcohol, and submit to drug and/or alcohol testing as requested by your ISP officer.

 Pay all financial obligations imposed by the ISP Resentencing Panel or by other courts.

 Inform your employer you are on ISP within 30 days of finding a job.

You should realize that if you fail to meet these expectations and others that will be set by the Resentencing Panel, you might immediately be returned to prison. If you break any rule, you might be placed under more restrictions rather than being returned to prison. If you successfully meet the expectations, certain privileges and extensions of your curfew will be permitted based on your performance.

For more information, contact:

ISP Administrative Office PO Box 974 Trenton, NJ 08625 609-984 0076

ISP Bay Region 236 Main St., 2nd Floor Toms River, NJ 08753 732-286-6440

ISP Crossroads Region 928 Livingston Ave. North Brunswick, NJ 08902 732-937-4547

ISP Mountain Region One Greenwood Ave., Ste. 200-A Montclair, NJ 07042 973-783-6311

ISP Northern Region One Greenwood Avenue, Ste. 200-B Montclair, NJ 07042 973-509-6552

ISP River Region 40 East Broad St., Ste. 200 Bridgeton, NJ 08302 856-453-3333

ISP Southern Region 101 Haddon Ave., Ste. 14 Camden, NJ 08103-1482 856-756-3440

Administrative Office of the Courts Probation Services Division

Stuart Rabner Chief Justice

Glenn A. Grant, J.A.D. Acting Administrative Director of the Courts

Kevin Brown Assistant Director, Probation Services

March 2011 CN: 10686-English

Intensive Supervision Program Brochure ISP- NJ FREQUENTLY ASKED QUESTIONS

2011-08-11T11:15:00.000-07:00

Intensive Supervision Program Brochure ISP- NJ FREQUENTLY ASKED QUESTIONS

How long is the application process?

The entire process from application to an appearance in front of the ISP Judges takes three to four months.

Can I apply for ISP if I have a stip or period of parole ineligibility?

You may apply; however, you would not be scheduled for a court date until after the completion of your stip. You may want to hold your application until you are within four months of the stip expiration.

My offense is a 2nd degree offense. Am I still eligible to apply to ISP?

Yes, however, if the Prosecutor objects, you must serve at least six months of your sentence and be within nine months of your earliest Parole Eligibility date.

Are there offenses that would make me ineligible?

Yes, any offenses under the Robbery, Sex Offenses and Homicide statutes and any first degree offenses. Applications are also screened for a number of factors including prior record, violence in the offense or in prior record, significant institutional infractions and absence of sincerity and motivation to carry out programmatic obligations. If the regional office deems that these factors exist, the application is forwarded to the ISP Screening Board for a further review before any other action is taken. The Screening Board (which includes citizen-members) may ask for additional information, may request that the case proceed for development or may deny the case. With a denial, the inmate would be informed of the decision of the ISP Screening Board.

Do I need a sponsor to get into ISP?

Having a sponsor is a crucial part of the case plan and most participants do have sponsors. However, some applicants who do not have a place to stay and must be placed in alternative housing, do not have sponsors. Sponsors are developed through the alternative housing, employees and AA/NA sponsors.

Do I need attorney representation?

Normally, applicants are represented by a private attorney or a Public Defender if they qualify. At the time of the interview, applicants will be asked if they are applying for PD representation and will fill out a form for that purpose. On rare cases, the Resentencing Panel allows the applicant to go Pro Se meaning they represent themselves; this approach is not recommended.How long will I be under supervision?

If your sentence is five years or less, you must be under ISP supervision for a minimum of sixteen months; for a six to seven year sentence- eighteen months minimum; for an eight to ten year sentence twenty months minimum; for over ten years- twenty-two months minimum; however, the actual number of months served and your successful discharge from ISP depends on your performance under supervision. In no case can you be on supervision for longer than five years minus time served.

Does successful completion of ISP erase my record?

No; Only New Jersey statute (NJSA 2C:52-2) allows for an application for expungement of a conviction after ten years following the conviction or completion of the supervision period.

Can I fill out an application for my spouse, boyfriend, or relative?

Yes, however, if they are unable to sign the application, the inmate should follow up with a letter affirming his desire to apply to ISP.

Can I re-apply for ISP for a new offense after either violating ISP or completing ISP successfully?

Recent changes in legislation allow individuals who have previously participated in ISP (both graduates and violators of the program) to re-apply to the program for possible admission.

Do I need a place to live in order to apply for ISP?

While it is preferable, we do place applicants in shelters or halfway houses according to availability of space.

Must I live in New Jersey?

There is no provision for transferring supervision outside of New Jersey. You must live in New Jersey.

Can I reside with a convicted felon?

This would depend on a number of factors and would have to be reviewed and approved by the regional office and the ISP Resentencing Panel.

What is the Cost of Supervision Fee?

While the Cost of Supervision Fee is initially a minimum of $1000, the Resentencing Panel can set the fee at any level based on your ability to pay up to $9,000.

SUPREME COURT APPROVAL OF CERTIFICATION IN MUNICIPAL COURT LAW

2011-07-28T08:43:00.000-07:00

NOTICE TO THE BAR

SUPREME COURT APPROVAL OF CERTIFICATION IN MUNICIPAL COURT LAW

The Supreme Court has approved the recommendation of the Board on Attorney Certification (“Board”) to expand the attorney certification program into the area of municipal court law. The Court by Order dated July 20, 2011 has adopted amendments to Rule 1:39 to be effective September 1, 2011 to reflect this additional area of certification, as well as other housekeeping amendments to the Rule. In addition, the Board has adopted, and the Supreme Court has approved, amendments to the Regulations of the Board on Attorney Certification in respect of municipal court law, as well as other housekeeping amendments to the Regulations, with those amendments also to be effective September 1, 2011. The amendments to the Rule and to the Regulations are published with this notice.

Dated: July 20, 2011

/s/ Mark Neary ____________________________ Mark Neary, Esq. Clerk of the Supreme Court

SUPREME COURT OF NEW JERSEY

It is ORDERED that the attached amendments to the following Rules Governing the Courts of the State of New Jersey are adopted to be effective September 1, 2011:

Dated:

July 20, 2011

Rule 1:39 Rule 1:39-1 Rule 1:39-1A Rule 1:39-2 Rule 1:39-4 Rule 1:39-5 Rule 1:39-7 Rule 1:39-8

For the Court, /s/ Stuart Rabner

Chief Justice

RULE 1:39. SPECIALTY CERTIFICATION OF ATTORNEYS An attorney of the State of New Jersey may be certified as a civil trial attorney, a

criminal trial attorney, a matrimonial law attorney, [or] a workers’ compensation law attorney, or a municipal court trial attorney, or in more than one designated area of practice, but only on establishing eligibility and satisfying requirements regarding education, experience, knowledge, and skill for each designated area of practice as set forth below.

To assist in the administration of the certification function, the Supreme Court shall establish, in accordance with these rules, a Board on Attorney Certification.

Note: Adopted January 26, 1979 to be effective April 1, 1979; amended May 15, 1980 to be effective September 8, 1980; amended June 28, 1996 to be effective September 1, 1996; caption and text amended July 20, 2011 to be effective September 1, 2011.

1:39-1. Board on Attorney Certification

(a) Appointment; Officers. ...no change (b) Quorum. ... no change

(c) Regulations. ... no change (d) Operations. The Board shall, consistent with these rules and its Regulations,

establish procedures, publish forms and maintain records as required for the conduct of the Board's operations and the certification of attorneys. The Board shall function as an appellate arm for Certification Committee decisions. The Board shall [will] be responsible for the financial and administrative operations of the certification program. The Board shall [will] maintain responsibility for policy, for making recommendations to the Supreme Court in respect of Rule and Regulation amendments, and [for accrediting continuing legal education courses] for the general oversight of the functions of the Certification Committees.

(e) Legal Education Activities. [The Board shall cooperate with law schools in this State, the Institute for Continuing Legal Education, and other recognized continuing legal education sponsors in developing and maintaining courses, clinics and other offerings by such institutions to enhance the skills and increase the knowledge of attorneys who seek to be certified by the Supreme Court. The Board may also cooperate with other law schools, bar associations and agencies interested in legal education.] The Board, on a case-by-case basis, may determine whether courses taken by an attorney, which have been approved by the Board on Continuing Legal Education for New Jersey’s mandatory continuing legal education program, will qualify toward meeting that attorney’s continuing education requirements related to certification in a particular specialty. The Board also may determine, on a case by case basis, whether certain educational activities related to the area of specialty but not approved under New Jersey’s

mandatory continuing legal education program may be considered for accreditation toward the educational requirements of certification.

(f) Reports. Reports as to the activities of the Board may be submitted to the Supreme Court from time to time. [An annual report shall be submitted by February 15th of each year as to the status of the certification program.]

(g) Staffing and Funding [Funds]. The day-to-day operations of the Board shall be performed by staff operating under the supervision of the Supreme Court Clerk’s Office. Staff salaries, benefits, and operational costs shall be funded from fees imposed pursuant to this rule and the Board’s Regulations. To the extent that the Board is not self-supporting, funds necessary for the operation of the certification program for attorneys shall be provided by the Administrative Office of the Courts.

(h) Fees. Each applicant for certification and recertification and each certified attorney shall pay required fees to the Secretary for the use of the Board. The fees shall be established in amounts to be set from time to time by the Board, subject to the approval of the Supreme Court, and, to the extent possible, so as to enable the program to be self-supporting.

(i) Effect of Board Membership. While serving on [During service with] the Board [on Attorney Certification], no member shall apply for or be examined for certification in any of the designated areas of specialty in this State. A [Certified] Board member who previously received certification [Member] may be recertified during the member’s term of service on the Board.

(j) Immunity. Members of the Board and their lawfully appointed designees and staff shall be absolutely immune from suit based on their respective conduct in performing their official duties.

Note: Adopted January 26, 1979 to be effective April 1, 1979; paragraphs (a), (b), (c), (d), (g), (h), and (i) amended May 15, 1980 to be effective September 8, 1980; paragraph (i) amended November 5, 1986 to be effective January 1, 1987; paragraph (a) amended February 8, 1993 to be effective immediately; paragraphs (a), (b), (c), (d), (e), (g), (h), and (i) amended June 28, 1996 to be effective September 1, 1996; paragraphs (a), (b), (c), (d), (e), and (f) amended July 5, 2000 to be effective September 5, 2000; paragraphs (d), (f), (h), and (i) amended, paragraphs (e) and (g) caption and text amended, and new paragraph (j) adopted July 20, 2011 to be effective September 1, 2011.

1:39-1A. Certification Committees (a) Appointment; Officer. The Supreme Court shall appoint a Civil Trial Law

Committee, a Criminal Trial Law Committee, a Matrimonial Law Committee, [and] a Workers' Compensation Law Committee, and a Municipal Court Trial Law Committee. The Court shall appoint no fewer than [four] three and no more than eleven members of the bar to serve on each Attorney Certification Committee. Committee members shall be appointed for three-year terms. No member who has served four full three-year terms successively shall be eligible for immediate reappointment. Members appointed to fill unexpired terms may be reappointed to four successive full terms. The Supreme Court shall designate one member of each Committee to serve as Chair of that Committee. The Chairs shall serve [, ex officio,] as members of the Board on Continuing Legal Education and the Board on Attorney Certification.

(b) Quorum. For each Committee, one more than half the total number of members shall constitute a quorum and all determinations shall be made by a majority of the quorum.

(c) Operations. ... no change (d) Effect of Certification Committee Membership. ... no change to text (e) Immunity. Members of the Certification Committees and their lawfully appointed

designees and staff shall be absolutely immune from suit based on their respective conduct in performing their official duties.

Note: Adopted June 28, 1996 to be effective September 1, 1996; paragraphs (a) and (c) amended and new paragraph (d) adopted July 5, 2000 to be effective September 5, 2000; paragraphs (a) and (b) amended, paragraph (d) caption amended, and new paragraph (e) adopted July 20, 2011 to be effective September 1, 2011.

1:39-2 . Eligibility. Subject to the specific requirements contained in the Regulations of the Board, an attorney shall be eligible to apply for certification in a designated area of practice on demonstrating to the Board on Attorney Certification the following:

(a) Minimum Admission Period; Practice of Law. [Membership] Applicants for

certification must be members in good standing with a plenary license at the bar of the State of New Jersey for at least five years. Applicants for certification must be (1) engaged in the private practice of law, wherein the applicant represents and gives legal advice to clients, and maintains the appropriate bank accounts pursuant to Rule 1:21-6; or (2) employed by State, county, or municipal government representing and giving legal advice to clients.

(b) Professional Experience. ... no change (c) Professional Reputation. The Board shall require each applicant to establish his or her

professional fitness and competence in the designated area of practice. Pursuant to the Regulations of the Board, the applicant shall submit to the [Board] relevant Certification Committee the names of a specified number of peer references of whom the [Board] Committee may inquire with regard to the applicant's professional fitness and competence as an attorney within the designated area of practice. The Board or the Committee may inquire of other attorneys or judges with respect to the professional qualifications and reputation of the applicant.

(d) Educational Experience. An applicant must demonstrate to the Board satisfactory and substantial educational involvement within the three years immediately preceding his or her application. The Board will evaluate the nature [, sponsorship, faculty,] and content [and duration] of educational involvements submitted by applicants on a case by case basis. The Board shall adopt Regulations governing the number of credits of continuing legal education

required for certification [and the approval of continuing legal education courses, and shall impose such fees as it determines are appropriate, subject to the approval of the Supreme Court].

(e) Ongoing Obligation. ... no change

Note: Adopted January 26, 1979 to be effective April 1, 1979; paragraphs (a) amended, former paragraph (b) deleted and former paragraph (c) redesignated as (b) and amended, former paragraph (d) redesignated as (c) and amended, and new paragraph (d) adopted May 15, 1980 to be effective September 8, 1980; paragraph (a) amended November 1, 1985 to be effective January 2, 1986; paragraph (d) amended November 7, 1988 to be effective January 2, 1989; paragraphs (b)(2) and (c), amended July 13, 1994 to be effective September 1, 1994; introduction and paragraphs (b), (c) and (d) amended June 28, 1996 to be effective September 1, 1996; corrective amendment to paragraph (c) adopted August 1, 1996 to be effective September 1, 1996; paragraphs (a), (b), (c), and (d) amended and new paragraph (e) adopted July 5, 2000 to be effective September 5, 2000;paragraph (a) amended July 28, 2004 to be effective September 1, 2004; paragraphs (a), (c) and (d) amended July 20, 2011 to be effective September 1, 2011.

1:39-4. Decision by Certification Committee or Board (a) Ineligible Applicants. ... no change (b) Duration of Eligibility; Qualified Applicants. ... no change

Note: Former rule adopted January 26, 1979 to be effective April 1, 1979; former rule deleted and former Rule 1:39-5 redesignated Rule 1:39-4 and amended May 15, 1980 to be effective September 8, 1980; new paragraph (a) adopted and former rule amended and designated paragraph (b) June 28, 1996 to be effective September 1, 1996; paragraphs (a) and (b) amended July 5, 2000 to be effective September 5, 2000; caption amended July 20, 2011 to be effective September 1, 2011.

1:39-5. Grant; Duration; Withholding of Certification (a) Grant of Certification. If upon due consideration the Board determines that an

applicant is qualified for certification as a civil or a criminal trial attorney, a matrimonial law attorney, [or] a workers' compensation law attorney, or a municipal court trial attorney, it shall so report to the Supreme Court, which shall direct the making of an appropriate entry on the roll of attorneys and shall cause to be issued an appropriate document attesting thereto.

(b) Duration of Certification. ... no change

(c) Withholding of Certification. ... no change

Note: Adopted January 26, 1979 as Rule 1:39-6 to be effective April 1, 1979; redesignated Rule 1:39-5 and paragraphs (a) and (c) amended and paragraph (d) deleted May 15, 1980 to be effective September 8, 1980; paragraph (c) amended July 13, 1994 to be effective September 1, 1994; paragraphs (a) and (c) amended June 28, 1996 to be effective to be effective September 1, 1996; paragraph (b) amended July 5, 2000 to be effective September 5, 2000; paragraph (a) amended July 20, 2011 to be effective September 1, 2011.

1:39-7. Renewal of Certification A member of the bar of this State who has been certified pursuant to these rules and the

Regulations of the Board, may apply for a renewal of such certification during the last twelve months of the five year period for which the attorney had received certification. The application for renewal shall include information specified in the Regulations of the Board, which will set forth the substantive, professional fitness and educational requirements for recertification. The appropriate Certification Committee and the Board shall render a decision regarding the application for renewal of certification in the same manner as provided by these rules and Regulations for initial certification.

Note: Adopted January 26, 1979 as Rule 1:39-8 to be effective April 1, 1979; amended and redesignated Rule 1:39-7 May 15, 1980 to be effective September 8, 1980; amended November 2, 1987 to be effective January 1, 1988; amended June 28, 1996 to be effective September 1, 1996; amended July 5, 2000 to be effective September 5, 2000; amended July 20, 2011 to be effective September 1, 2011.

1:39-8. Termination of Certification (a) Basis for Termination. ... no change (b) Procedures to Follow. ... no change (c) Effect of Determination of Unethical Conduct. ... no change (d) Hearing Panels; Recommendation to Court. In all cases hearings may be held before a

panel of no fewer than three members of the Board, which shall render a report to the full Board. In appropriate circumstances, the matter may be referred for consideration to the District Ethics Committee. The Board shall recommend to the Supreme Court the sanction to be imposed, which may include either termination or [suspension] conditions imposed for a stated period. Should the Supreme Court approve the Board's recommendation to terminate certification, the Board shall notify other certifying agencies to which the attorney holds a certification of that termination.

(e) Burden of Proofs; Effect of Termination. ... no change

(f) Lapsing of Certification. ... no change

Note: Adopted January 26, 1979 as Rule 1:39-9 to be effective April 1, 1979; amended and redesignated Rule 1:39-8 May 15, 1980 to be effective September 8, 1980; amended November 2, 1987 to be effective January 1, 1988; amended and rule designated as paragraphs (a), (b), (c), (d), and (e) June 28, 1996 to be effective September 1, 1996; paragraph (d) amended and new paragraph (f) adopted July 5, 2000 to be effective September 5, 2000; paragraph (d) amended July 20, 2011 to be effective September 1, 2011.

Revisions Approved by the Court July 20, 2011 Regulations of the Board on Attorney Certification PART ONE - GENERAL REGULATIONS

REGULATION 101. Applicability and Citation of Regulations 101:1 ... no change 101:2 ... no change

REGULATION 102. Board on Attorney Certification 102:1 Establishment; Appointment. To assist in the administration of the certification function the Supreme Court shall establish, in accordance with the Rules of Court, a Board on Attorney Certification. Pursuant to Rule 1:39-1(a), the Board shall consist of not more than eleven members, all of whom shall be members of the Bar of this State. Board membership shall include the Chairs of each of the [four] five Certification Committees, appointed pursuant to RG. 103:1. The remaining members, who shall not exceed [seven] six in number, must be certified in a designated area of practice to be eligible for appointment to the Board, except for those appointed to serve on a newly created Certification Committee.

102:2 Quorum. ... no change 102:3 Operation, Functions. The Board shall, consistent with the Rules of Court and these Regulations, establish procedures, publish forms and maintain records as required for the conduct of the Board's operations and the certification of attorneys. The Board shall function as an appellate arm for Certification Committee decisions. The Board will be responsible for the financial and administrative operations of the certification program. The Board will maintain

responsibility for policy; for making recommendations to the Supreme Court in respect of Rule 1

and Regulation amendments; and on a case by case basis for [accrediting continuing legal education courses] determining whether courses taken by an attorney, which have been approved by the Board on Continuing Legal Education for the mandatory continuing legal education program, shall qualify toward meeting the continuing education requirements related to certification in a particular specialty. The Board may also determine accreditation , on a case by case basis, as to whether certain educational activities related to the area of specialty but not approved under the mandatory continuing legal education program may be considered for accreditation toward the educational requirements of certification. The Board will delegate to the Committees the responsibility of preparing and drafting applications and peer reference forms, preparing, drafting and grading examinations, and reviewing applications for certification and determining eligibility.

102:4 Fees; Funding. ... no change 102:5 Reports. ... no change 102:6 Effect of Board Membership. ... no change

REGULATION 103. Certification Committees

103:1 Appointment; Membership. The Court shall appoint Certification Committees to assist the Board in the consideration of applications for certification. Members shall be practicing attorneys or retired Judges or Justices. They shall serve for three-year terms and shall be eligible for reappointment for three successive terms. In establishing the Committees, the Supreme Court may appoint some members to an initial term of less than three years. The following Committees are hereby established, with the number of members noted:

2

a. Committee on Civil Trial Law (no more than 7 members); b. Committee on Criminal Trial Law (no more than 3 members); c. Committee on Matrimonial Law (no more than 9 members); [and] d. Committee on Workers' Compensation Law (no more than 5 members); and e. Committee on Municipal Court Law (no more than 9 members).

The Chair of each Certification Committee shall serve on the Board of Attorney Certification [, ex officio]. Certification Committee members need not be certified in a designated area of practice to qualify for appointment.

103:2 Quorum. ... no change

103:3 Operation, Function. The Certification Committee for each designated area of practice shall develop appropriate forms and schedules for the submission of applications by members of the bar seeking certification or recertification. All forms and schedules shall be approved by the Board. Certification Committees shall review applications for certification to determine eligibility for the written examination. Adverse decisions by a Certification Committee in respect of eligibility or examination are reviewable by the Board and the Supreme Court pursuant to the Rules of Court and these Regulations. The Certification Committee shall also draft and grade the written certification examinations and review applications for recertification, making recommendations to the Board of who shall be recertified. The Certification Committees shall undertake such other duties as may be, from time to time, assigned by the Board.

103:4 Effect of Committee Membership. ... no change A-4

PART TWO - EXAMINATION ELIGIBILITY REQUIREMENTS REGULATION 201. General Eligibility Requirements ... no change

REGULATION 202. Admission to the Bar; Ongoing Obligation: Practice of Law. 202:1 Minimum Plenary Admission. Admission to the bar of the State of New Jersey for the purpose of meeting the requirements of this section commences from the date of an attorney's plenary admission. An applicant must have been in good standing in all jurisdictions in which the applicant holds a bar license for at least the five years immediately preceding the filing of the application, and must so certify.

202:2 Ongoing Obligation. ... no change

202:3 Practice of Law. Applicants for certification must be (1) engaged in the private practice of law, wherein the applicant represents and gives legal advice to clients, maintains a bona fide office [in New Jersey] pursuant to Rule 1:21-1(a) and maintains the appropriate bank accounts pursuant to Rule 1:21-6; or (2) employed by State, county or municipal government representing and giving legal advice to clients.

REGULATION 203. Professional Experience 203:1 Civil and Criminal Trial Attorney Requirements. The applicant must establish that:

(a) He or she has devoted a substantial portion of professional time to the preparation of litigated matters in New Jersey, the majority of which are venued in Superior Court, for the three years immediately preceding the filing of the application;

App. A-4

(b) He or she has had primary responsibility since plenary admission to the bar for a minimum of ten contested actions in New Jersey, at least six of which were venued in Superior Court or U.S. District Court for the District of New Jersey, and that were, in the opinion of the Board, substantially submitted to the trier of fact; and

(c) In the case of civil certification, the [The] ten contested actions must include a minimum of [thirty] twenty trial days in Superior Court or U.S. District Court.

(d) In the case of criminal trial certification, the ten contested actions must include a

minimum of twenty-five trial days in Superior Court or U.S. District Court.

(e)[(d)]Definitions. For the purpose of meeting the requirements of this Regulation, the following definitions apply:

(1) Contested actions. To qualify as a "contested action," a matter must be adversarial in nature and involve substantial charges, claims, issues, or consequences. For example, the following features shall qualify a matter as a "contested action:"

i) in criminal cases, an indictable offense[;]. The Board will also consider the following, but no more than five: domestic violence orders based on crimes; contempt charges in family court; juvenile cases involving crimes; and trial-type hearings in Superior Court;

ii) in civil or administrative matters, a claim or demand that reasonably exposes the defendant or respondent to damages or [a] any penalty [in an amount that exceeds $25,000]; or

iii) in civil or administrative matters that do not present a claim for money damages or a civil penalty (such as chancery actions, declaratory judgment proceedings, and actions in lieu of prerogative writs), substantial public issues or, assuming a ruling or judgment against a party, exposure of that party to substantial adverse personal or economic consequences;

iv) such other matters as, in the Board's judgment, are of sufficient substance or import to qualify as "contested actions."

App. A-5

An arbitration proceeding shall not qualify as a contested action unless the applicant can demonstrate that the arbitration was substantially equivalent to a trial in Superior Court.

(2) Litigated matters. Litigated matters include contested actions as defined in this Regulation. Any other matter tried before a court, agency, or arbitrator shall also qualify as a litigated matter.

(3) Submission to trier of fact. A substantial number of the ten cases required by this Regulation must have been tried to conclusion as to the applicant's clients. In addition, the Board may consider cases that were settled prior to judgment or verdict, but only when the applicant completely prepared the case for trial by motion practice and extensive discovery. For example, such preparation might include a combination of any of the following: in civil actions, the taking of depositions, the preparation and service of non-uniform interrogatories and of answers to non-uniform interrogatories and requests for admissions; or, in the prosecution or defense of criminal matters that were concluded by plea negotiation, pretrial investigation including extensive factual investigation and the preparation of or opposition to pretrial motions presenting substantial and complex issues arising under the State or Federal Constitution or Rules of Criminal Procedure.

(f)[(e)] Time limitations. The ten contested actions may be cases that have been handled and concluded at any time between the date of the applicant's plenary admission to the practice of law and the date of the application for certification.

(g)[(f)] Required information. The applicant shall submit the following information on a form adopted by the Board:

(1) Substantial involvement in litigation. The applicant shall present a brief summary of each matter prepared for trial or tried within the three years immediately preceding the application. If more than thirty matters are eligible, the applicant shall submit no more than ten from each year, which shall fairly reflect the type of cases for which the applicant was responsible. The summary shall include the following:

i) caption and docket number of the case; ii) date of disposition; iii) forum; iv) nature of action or proceeding;

v) names and addresses of all counsel; vi) name of judge; vii) number of trial days; viii) presence or absence of a jury;

App. A-6

ix) point at which the proceedings were terminated; and

x) any additional information the applicant may deem to be relevant. (2) Applicant's ten contested actions. The applicant shall present the following details on the ten contested actions submitted pursuant to this

Regulation: i) caption and docket number of the case; ii) date of disposition; iii) forum; iv) name of judge or other officer; v) nature of action or proceeding; vi) amount in controversy; vii) principal issues involved; viii) significant pretrial or post-trial motions; ix) significant discovery problems or techniques; x) status at which matter terminated; xi) role in proceedings; xii) outcome of proceedings; xiii) names and addresses of all counsel; and xiv) any additional information the applicant may deem to be relevant.

203:2 Matrimonial Law Requirements. The applicant must establish that he or she has: (a) Devoted a substantial part of his or her time to the practice of matrimonial law; (b) Devoted a substantial portion of professional time to the preparation of

matrimonial litigated matters in New Jersey, venued in Superior Court, for the

three years immediately preceding the filing of the application; (c) Had primary responsibility for a minimum of fifteen contested matrimonial law

hearings per year over the three years immediately preceding the application; (d) Had primary responsibility for a minimum of twenty-five negotiated matrimonial law judgments or negotiated Property Settlement Agreements in the three years

immediately preceding the application; (e) Had substantial involvement in a minimum of twenty-five contested matrimonial

law actions during the three year period preceding the application or not less than

forty contested matrimonial law actions during the applicant's career; and (f) A minimum of five contested matrimonial law trials or plenary hearings during the three year period preceding the application on a substantive or factual issue or, alternatively, a total of ten contested matrimonial law trials during the applicant's career. In addition, the Board may consider cases that were settled prior to judgment, but only when the applicant was the attorney primarily responsible for

preparing the case for trial. (g) The Board, in its discretion, may relax certain of the standards set forth above in

those instances in which an applicant demonstrates exceptional qualifications that justify certification and may, in doing so, consider significant active participation during the five year period preceding Certification in the following:

App. A-7

(h) (i)

(1) Service as a Matrimonial Early Settlement Panelist; (2) Service as counsel or as a guardian ad litem by appointment of the Court; (3) Service with a County Bar, State Bar, national bar association, national or state organization dealing primarily in matrimonial law-related matters or service on Supreme Court Committees dealing with matrimonial law; [and] (4) Authorship of published article(s) on matrimonial law[.]; and (5) Mediation proceedings that result in a substantial resolution of the case. The proceeding must either have been more than one session or longer than two hours.

Definitions. ... no change Required information. ... no change

203:3 Workers' Compensation Law Requirements. The applicant must establish that he or she:

(a) Has devoted a substantial portion of his or her practice to the area of workers' compensation;

(b) Has resolved to completion a minimum of 120 workers' compensation cases cumulatively over the three years immediately preceding the application for certification;

(c) Has had primary responsibility since plenary admission to the bar for a minimum of ten contested workers' compensation actions resolved either to a decision by the compensation court or in substantial part prior to a settlement. As an alternative, two of the ten contested actions may be appeals to either the Appellate Division or the Supreme Court of New Jersey provided, however, that any such appeals submitted for consideration must be separate matters from any other contested action submitted towards meeting this requirement; and

(d) Has had primary responsibility since plenary admission to the bar for five Second Injury Fund matters involving post-1980 cases and resulting in the entry of an order for Second Injury Fund liability.

(e) Definitions. For the purpose of meeting the requirements of this Regulation, the following definitions apply:

(1) Contested actions. To qualify as a "contested action," a matter must be one in which the trier of fact can only decide the issue or issues presented to the Compensation Court after hearing substantive testimony from at least one witness and the petitioner. Substantive testimony is verbal or demonstrative evidence presented by a witness that provides facts or expert opinion for consideration by

App. A-8

the trier of fact and excludes testimony merely presented for the purpose of authentication or otherwise identifying records for admission into evidence.

i) the term "substantial part" as used in this Regulation means that all witnesses have testified and that all that remains is a decision by the trier of fact. The term trial day as used in this regulation shall be one calendar day during which testimony from a witness shall be taken before a Judge of Compensation.

ii) contested actions submitted for consideration must have included the testimony of witnesses other than the petitioner, either in court or through sworn deposition. A total of at least thirty witnesses must be taken before a Judge of Compensation in court or by de bene esse deposition for use in a contested action.

iii) at least five of the ten contested actions must have included the testimony of a minimum of [two] ten medical-professional witnesses or other scientific experts. The applicant may include up to four medical or scientific experts whose testimony was taken in the course of Federal or Superior Court litigation.

iv) a contested action can include a motion for medical and temporary benefits and/or a maximum of two workers' compensation appeals. Any such appeal shall not be considered as separate and apart from any other contested matter involving the same petitioner and the same or accompanying claim petitions.

v) any matter closed pursuant to N.J.S.A. 34:15-20 may be included as a contested action provided testimony has been taken of at least two witnesses prior to the settlement under Section 20.

vi) all cases concluded by means of an Accelerated Award Proceeding or Trial on Reports cannot be used as a contested action.

vii) all [matters] testimony taken [listed] under this section must have been [tried] taken in substantial part by the applicant and no [matter] testimony may be submitted for consideration by more than one attorney on behalf of any one party. [Therefore, t]The applicant must have been responsible for appearing for 80% of the trial days for each contested action.

(2) Litigated matters. ... no change. (3) Submission to trier of fact. ... no change (4) Time limitations. ... no change (5) The term "resolved to completion" as used in this Regulation means either

settled or tried to conclusion as to the applicant's client. (f) Required information. ... no change

203:4 Municipal Court Law Requirements. The applicant must establish that he or she: (a) Has devoted a significant portion of his or her professional time to the area

municipal court practice.

App. A-9

(b) Has devoted a substantial portion of his or her professional time to the preparation of a minimum of thirty litigated matters per year venued in municipal courts of New Jersey, for the three years immediately preceding the filing of the application;

(c) Has had primary responsibility, since plenary admission to the bar, for a minimum of ten contested actions in New Jersey municipal courts that were, in the opinion of the Board, substantially submitted to the trier of fact; and

(d) The ten contested actions must include a minimum of six municipal court trials resolving allegations related to driving while intoxicated or refusal.

(e) Definitions. For the purpose of meeting the requirements of this Regulation, the following definitions apply:

(1) Contested actions. To qualify as a "contested action," a matter must be one in which the trier of fact can only decide the issue or issues presented and is adversarial in nature, involving charges, claims, issues, or consequences related to the prosecution of a municipal court summons, complaint, and/or citation.

(i)The types of matters that will qualify as contested actions are those that are adjudicable in municipal court, which include: motor vehicle and traffic violations; disorderly persons, petty disorderly persons, or other non-indictable offenses; local ordinance violations; fish, game, and boating violations; penalty collection proceedings; trial-type hearings in municipal court, including plenary motions, motions to suppress, and Alcotest; and other matters authorized by statute or Court Rule to be under the subject matter jurisdiction of the municipal court.

(2) Litigated matters. Litigated matters include contested actions as defined in this Regulation but need not have been tried to conclusion before the trier of fact. The Board will consider matters that were resolved prior to trial when the applicant completely prepared the case for trial through motion practice, discovery, client interview, and plea negotiations. Municipal court appeals also may be considered as litigated matters. Any litigated matters listed may not be the same case as listed as a contested action.

(3) Submission to trier of fact. A substantial number of the ten cases required by this Regulation must have been tried to conclusion as to the applicant’s clients. In addition, the Board may consider cases that were settled or resolved prior to judgment or verdict, but only when the applicant completely prepared the case for trial by motion practice and extensive discovery.

(f) Time limitations. The ten contested actions may be cases that have been handled and concluded at any time between the date of the applicant's plenary admission to the practice of law and the date of the application for certification.

(g) Required information. The applicant shall submit the following information on a form adopted by the Board:

App. A-10

(1) Substantial involvement in litigation/litigated matters. The applicant shall present a brief summary of each of the 90 matters prepared for trial or tried within the three years immediately preceding the application, listing 30 matters in each of those three years. The matters submitted shall fairly reflect the type of cases for which the applicant was responsible. The summary shall include the following:

i) caption and docket/summons number of the case; ii) date of disposition; iii) nature of action or proceeding; iv) names and addresses of all counsel;

v) name of judge; vi) number of trial days; vii) point at which the proceedings were terminated; and viii) any additional information the applicant may deem to be relevant.

(2) Applicant's ten contested actions. The applicant shall present the following details on the ten contested actions submitted pursuant to this Regulation: i) caption and docket/summons number of the case;

ii) date of disposition; iii) name of judge; iv) nature of action or proceeding; v) principal issues involved; vi) significant pretrial or post-trial motions or appeals; vii) significant discovery and/or trial issues or techniques; viii) status at which matter terminated; ix) number of trial days; x) role in proceedings; xi) outcome of proceedings; xii) names and addresses of all counsel; and xiii) any additional information the applicant may deem to be relevant.

App. A-11

REGULATION 204. Professional Reputation

204:1 Applicant’s submission; Civil Trial Law, Criminal Trial Law, Matrimonial Law, [and] Workers’ Compensation Law, and Municipal Court Law.

(a) Each applicant shall submit as references the names and addresses of [five] eight members of the bench or bar of this State who can attest to the applicant's competence as an attorney in the area of practice in which certification is being sought. Members of the bar whose names are submitted for such purpose must be substantially engaged in that area of practice. [At least two] Three references shall be from judges who have observed the applicant's skills in the three years preceding the filing of the application. Five references shall be from members of the bar who have been an adversary or co-counsel with the applicant in trial.

(1) in the case of municipal court practice applications, “members of the

bench” refers to judges of the municipal court. (b) At least two references shall be from attorneys who represented opposing parties,

one of whom shall have represented an opposing party in a "contested [matter] action" or a "contested matrimonial law trial" as defined in these Regulations, and another of whom shall have represented an opposing party in a "litigated matter" or a "contested matrimonial law hearing" within the three years immediately preceding the filing of the application.

(c) An applicant may not submit as a reference the name of any member of the bench or bar with whom the applicant has or had been formally associated in the practice of law.

(d) Justices of the Supreme Court and members of the Board and the Certification Committees are not eligible as references for an applicant.

204:2 Reference letters. ... no change 204:3 Board and Certification Committee inquiries. ... no change

REGULATION 205. Educational Experience

205:1 General Requirements. [Except as provided below, an] An applicant shall submit information demonstrating a completion of a specified number of hours of continuing legal education, approved and accredited for continuing legal education credits by the Board on Continuing Legal Education, specifically in the area of certification applied for or in ethics and professionalism within the three years immediately preceding the application. [An "hour" of continuing legal education shall include only the time spent in instruction. Meals and recess periods are specifically excluded. Applicants instructing or participating in a continuing legal education program as described in (b) and (c), below, will be credited with twice the time of actual instruction. Repeat presentations of the same lecture within a twelve-month period will

App. A-14

gain no additional credit. Among the types of educational involvement that the Board will consider are:

(a) Attendance at and completion of courses that relate to the improvement of trial and litigation skills in the specific area of practice for which certification has been sought;

(b) Teaching or lecturing in programs of study or in courses in the area of practice for which certification has been sought;

(c) Participating as a panelist in or speaker at seminars, symposia, or lecture programs in aspects of litigation in the area of practice for which certification has been sought;

(d) "In-house" courses given by and for government attorneys only; provided, however, that an applicant may not use such courses for more than 50% of the continuing legal education credits required by this Regulation; and

(e) Such other educational involvement as the Board may, in its discretion, deem appropriate.]

[The Board shall evaluate such involvement on a case-by-case basis.]

The Board and/or Certification Committees shall review an applicant’s submitted continuing education courses to ensure that the applicant has limited the credits required for certification to the area of specialty sought, exclusive of the credits obtained toward fulfillment of ethics/professional responsibility and professionalism credits as required under the mandatory continuing legal education program. The Board reserves the right to review and approve, on a case by case basis, other forms of educational activities that may not have been accredited under the mandatory continuing legal education program.

205:2 Civil and Criminal Trial Law Requirements. In addition to the general requirements of this Regulation, the applicant must complete in the three years preceding the application a minimum of thirty-six credits of continuing legal education in civil trial law and/or thirty-six credits of continuing legal education in criminal trial law. Those courses taken in ethics/professional responsibility and professionalism in fulfillment of the mandatory continuing legal education requirement can be included in the thirty-six credits required under this Regulation.

205:3 Matrimonial Law Requirements. In addition to the general requirements of this Regulation, those seeking certification in Matrimonial Law must demonstrate that within three years immediately preceding application, he or she completed no fewer than forty-five [hours] credits of continuing legal education programs in matrimonial law, which must include:

(a) Not less than fifteen (15) of the required [hours] credits must be satisfied by completion of approved educational programs in the areas of dissolution of marriage, child support, spousal support, or modification of support, contempt or enforcement, equitable distribution or property division, or taxation issues

App. A-15

incident to dissolution of marriage or matters addressed by the prevention of

Domestic Violence Act. (b) Not less than six (6) of the required [hours] credits must be satisfied by

completion of approved educational programs in the area of custody of children. (c) Not less than three (3) of the required [hours] credits must be satisfied by

completion of approved educational programs in the area of evidence. (d) Not less than three (3) of the required [hours] credits must be satisfied by completion of approved educational programs in the area of mediation, complimentary dispute resolution, psychological and counseling aspects of

dissolution of marriage. [(e) Not less than three (3) of the required [hours] must be satisfied by completion of

approved educational programs in the area of professional responsibility.] Those courses taken in ethics/professional responsibility and professionalism in fulfillment of the mandatory continuing legal education requirement can be included in the forty-five credits required under this Regulation.

205:4 Workers' Compensation Law Requirements. In addition to the general requirements of this Regulation, those seeking certification in Workers' Compensation Law must demonstrate In the three years preceding the application a minimum of thirty-six hours of continuing legal education courses in workers’ compensation law, at least [ten] twelve of their education requirement having been devoted to medicine. Those courses taken in ethics/professional responsibility and professionalism in fulfillment of the mandatory continuing legal education requirement can be included in the thirty-six credits required under this Regulation.

205:5 Municipal Court Law Requirements. In addition to the general requirements of this Regulation, those seeking certification in Municipal Court Law must demonstrate in the three years preceding the application a minimum of thirty-six hours of continuing legal education courses in municipal court practice, at least twelve credits of their education requirement having been devoted to DWI and refusal issues. Those courses taken in ethics/professional responsibility and professionalism in fulfillment of the mandatory continuing legal education requirement can be included in the thirty-six credits required under this Regulation

[205:5 Videotapes; Audiotapes. For applicants seeking their initial certification in any designated area of practice, videotaped replays of continuing legal education courses will be granted credit only if given by a recognized sponsor and viewed in a structured setting.]

205:6 Evaluation Criteria. The Board shall apply the following criteria in establishing the substance of any listed educational experience:

(a) Programs given prior approval by the Board on Continuing Legal Education shall automatically qualify towards establishing an applicant's substantial educational involvement, so long as they are in the area of certification applied for or are

App. A-16

approved for accreditation in ethics/professional responsibility and

professionalism; [(b) Programs not passed on by the Board shall qualify if presented:

(1) For the purpose of advancing the certified area of practice through improving practice and procedures or through emphasis on the ethical obligations of counsel;

(2) By qualified personnel; (3) By live instructors or with recorded materials supplemented by live

commentators; and (4) With thorough and well-organized written materials.]

(b) Programs that advance the education and expertise of the attorney in the area of specialty certification sought will qualify as meeting the educational requirements of this regulation.

(c) The Board reserves the right to require an applicant to submit additional information on any program, including but not limited to, copies of the written materials and a list of the instructors, to determine its applicability to the area of specialty certification sought.

(d) The Board will review and may approve, on a case by case basis, educational activities that have not been accredited under the mandatory continuing legal education program that relate to the applicant’s practice and specialty.

[205:7 Program approval. Planned programs should be submitted for Board approval before they are conducted. Requests for pre-approval should be made at least one month prior to the scheduled date of the program. All submissions shall be reviewed to determine whether the program:

(a) Is being presented by qualified personnel. To that end, a list of all instructors, with short statements on their qualifications, shall be forwarded to the Board with the request for approval. The list must be kept current;

(b) Has live instruction or recorded materials supplemented by live instruction; (c) Has thorough, well-organized, and readable written materials; and (d) Is primarily designed to promote the skills required to be an effective, competent,

and ethical attorney, or is designed to enhance or keep current an attorney's knowledge in the substantive law of the fields in which the attorney practices. Prior to determining that the foregoing requirements have been met, the Board may ask for such other information as it may deem appropriate.

Programs approved by the Board may be held out as such with the following language: - "This program qualifies for _______ hours of CLE credit toward New

Jersey Civil Trial Attorney Certification;" - "This program qualifies for _______ hours of CLE credit toward New

Jersey Criminal Trial Attorney Certification;" App. A-17

- "This program qualifies for _______ hours of CLE credit toward New Jersey Matrimonial Attorney Law Certification;" or

- "This program qualifies for _______ hours of CLE credit toward New Jersey Workers' Compensation Law Attorney Certification."]

[The Board reserves the right to withdraw its approval of any program on notice to the sponsoring body.]

[205:8 Sponsor Fee. Sponsors of Continuing Legal Education programs that charge a registration fee of more than $40 shall be assessed a sponsor's fee for each offering of the course for which Board approval is sought. The sponsor shall pay either a flat fee of $100 or a fee of $5 for each New Jersey attorney who attends the course (with a minimum assessment of $25). Previously approved courses are subject to this fee each time the course is offered. Sponsors who seek retroactive approval for a course shall, in light of the attendance at the program, be required to pay whichever fee is the greater.]

[205:9] 205:7 Continuing Legal Education Obligations of Certified Attorneys.

(a) General Requirements. [Except as set forth in paragraph (b) below,] C[c]ertified attorneys shall satisfy their continuing legal education obligation required under this Regulation by completing a minimum of [fifty] sixty [hours]credits of CLE programs that are directly related to the designated area of practice covered by the attorney's certification and that have been approved for accreditation by the Board on Continuing Legal Education for CLE credits. [An "hour" of continuing legal education shall include only time spent in instruction; meals and recess periods are specifically excluded.] Attorneys who are certified in more than one area of practice must fulfill a minimum of [75] 90 [hours] credits of continuing legal education in their area of specialty certification. Those courses taken in ethics/professional responsibility and professionalism in fulfillment of the mandatory continuing legal education requirement can be included in the sixty credits required under this Regulation.

[Among the types of educational involvement the Board, in its discretion, will consider are: (1) Programs directly related to improvement of litigation skills in the

designated area of practice; (2) Substantive courses in the area of law in which the certified attorney

conducts litigation as part of his or her practice; (3) Teaching or lecturing in programs of study for attorneys in the designated

area of practice; (4) Participating as a panelist in or speaker at seminars, symposia, or lecture

programs on aspects of the designated area of practice; (5) Authorship and publication in the designated area of practice;

App. A-18

(6) Active participation in American Bar Association, New Jersey Bar Association, specialized Bar functions, and Supreme Court Committees dealing with specific substantive or procedural law issues in the designated area of practice;

(7) Active participation in the work of a professional committee dealing with a specific problem of substantive or procedural law in the designated area of practice;

(8) Inns of Court programs; (9) "In-house" courses taught by a certified attorney; (10) At-home or in-office viewing of video tapes and the analogous use of

audio tapes of pre-approved continuing legal education programs, but only up to 50% of the continuing legal education requirement. If the video- or audio-taped course was not approved for continuing legal education credit when it was presented live, the Board may, in its discretion, decline to give the applicant credit for the course; and

(11) Such other educational involvement as the Board may, in its discretion, deem appropriate.

An applicant's involvement in activities covered by paragraphs (6) and (7), above, cannot cumulatively account for more than 33% of the applicant's total CLE requirements for recertification.

Certified attorneys may satisfy their educational obligations by attending a combination of courses in the certified area of practice. At least thirty-five of the fifty required continuing legal education credit hours must be in courses that relate to the attorney's certified area of practice. The balance of the credit hours may be in the area of general trial or litigation skills or in cross-over courses. Cross-over courses are those courses taken in other areas of practice covered by the certification program, such as, for example, criminal courses taken by civil trial attorneys or civil courses taken by criminal trial attorneys.]

(b) The Board shall evaluate attorney involvement on a case-by-case basis. The Board will review and may approve, on a case by case basis, educational activities that have not been accredited under the mandatory continuing legal education program that relate to the applicant’s practice an specialty. The Board reserves the right to require an applicant to submit additional information on any program, including but not limited to, copies of the written materials and a list of the instructors, to determine its applicability to the area of specialty certification sought. Failure to comply with this Regulation is grounds for revocation of the attorney's certification or for a refusal to recertify that attorney.

App. A-19

[(b)](c) Matrimonial Law Requirements. The certified matrimonial law attorney must demonstrate that he or she has completed no fewer than 75 hours of continuing legal education programs, which must include satisfying the following:

(1) Not less than thirty (30) of the required [hours] credits must be satisfied by completion of approved educational programs in the areas of dissolution of marriage, child support, spousal support, or modification of support, contempt or enforcement, equitable distribution or property division, or taxation issues incident to dissolution of marriage or matters addressed by the Prevention of Domestic Violence Act.

(2) Not less than twelve (12) of the required [hours] credits must be satisfied by completion of approved educational programs in the area of custody of children.

(3) Not less than six (6) of the required [hours] credits must be satisfied by completion of approved educational programs in the area of evidence.

(4) Not less than six (6) of the required [hours] credits must be satisfied by completion of approved educational programs in the area of mediation, complimentary dispute resolution, psychological and counseling aspects of dissolution of marriage.

[(5) Not less than six (6) of the required hours must be satisfied by completion of approved educational programs in the area of professional responsibility.

(6) As with initial certification, for each approved continuing legal education course taught the applicant is entitled to receive an additional one hour for preparation time for each hour of the course.]

(5) Those courses taken in ethics/professional responsibility and professionalism in fulfillment of the mandatory continuing legal education requirement can be included in the 75 credits required under this Regulation.

REGULATION 206. Application Fee

Each applicant shall pay a non-refundable application fee [of $200] as determined by the Board. The fee shall accompany the application for certification. A separate fee shall be paid with each application. Checks shall be made payable to "Secretary, Board on Attorney Certification." This fee shall be in addition to the examination fee required pursuant to RG.301:3.

App. A-20

REGULATION207. Review of Application; Determination of Eligibility for Examination.

207:1 Perfection of Application. ... no change 207:2 Notification. ... no change 207:3 Eligibility; duration. ... no change 207:4 Ineligibility; review by Board. ... no change

App. A-21

PART THREE - EXAMINATIONS REGULATION 301. Written Examination

301:1 General Requirements. ... no change

301:2 Application Form. ... no change

301:3 Examination Fee. The returned application for admission to the written examination shall be accompanied by a non-refundable check or money order in [the] an amount [of $150] determined by the Board, made payable to the Secretary, Board on Attorney Certification.

301:4 Time and Place. ... no change

301:5 Examination Format. ... no change

301:6 Scope of Examination. The examination shall include general practice and litigation skill questions in the designated area of practice. Areas covered in the examinations may include the following:

(PLEASE NOTE THAT THE LIST IS NOT INTENDED TO BE MORE THAN A GUIDE AND IS NOT ALL-INCLUSIVE.)

A. GENERAL AND CIVIL TRIAL

1. Pretrial preparation. a. Problem recognition - advisability of suit-cost considerations. b. Jurisdiction, venue, and choice of forum. c. Applicability of statute of limitations. d. Ethical considerations - conflict of interest - fee arrangements. e. Competency to accept employment. f. Retainer agreement. g. Investigation. h. Legal research. I. Settlement procedures. j. Demand letter.

2. Filing suit. a. Pleadings.

1) Elements of causes of action and defenses. 2) Elements of damages. 3) Temporary restraining orders and permanent injunctions and other

extraordinary remedies. b. Intervention.

App. A-22

c. Pretrial discovery and related motions. d. Defensive cross-claims and counterclaims. e. Pretrial practice.

3. Trial. a. Trial strategy and tactics. b. Jury selection. c. Opening statement. d. Introduction and exclusion of evidence.

1) Relevance. 2) Competency of witnesses. 3) Privileges. 4) Presumptions. 5) Impeachment. 6) Opinion and expert testimony. 7) Hearsay and hearsay exceptions. 8) Exclusion for valid reason of evidence otherwise admissible. 9) Judicial notice. 10) Documentary and physical evidence. 11) Cross-examination. 12) Offer for limited purpose and re-offer. 13) Offer of proof.

e. Motions during trial.

f. Establishing a trial court record for appeal. 1) Objections to evidence. 2) Exceptions to charges. 3) Requests to charge the jury.

4) Special interrogatories to the jury.

g. Summation. h. Court's charge and instruction to the jury. I. Jury deliberation. j. V erdicts. k. Findings of fact and conclusions of law. l. Post verdict motions. m. Judgments.

1) Form.

2) Enforcement. 4. Rules of Professional Conduct.

App. A-23

B. CRIMINAL TRIAL (in addition to those subjects common to CIVIL TRIAL)

1. Pretrial diversion. 2. Pretrial release. 3. Probable cause hearing. 4. Examining indictment, information, and complaint. 5. Pretrial discovery. 6. Continuance. 7. Severance. 8. Speedy trials. 9. Double jeopardy. 10. Immunity. 11. Confessions. 12. Search and seizure. 13. Identification. 14. Competency to stand trial. 15. Jury voir dire. 16. Rules of criminal evidence, e.g., impeachment, extraneous offenses, etc. 17. Sentencing. 18. Plea negotiations and guilty pleas. 19. Motion for new trial. 20. Post-conviction remedies. 21. Probation and parole granting. 22. Probation and parole revocation. 23. Executive clemency. 24. Substantive criminal offenses and defenses. 25. Juvenile crimes. 26. Rules of Professional Conduct.

App. A-24

C. MATRIMONIAL LAW

1. Divorce. 2. Alimony. 3. Child support. 4. Custody (including UCCJA, PKPA and Hague Convention on International Child

Abduction). 5. Domestic violence.

6. URESA. 7. Premarital agreements. 8. Settlement agreements. 9. Equitable distribution. 10. Post-judgment modification and enforcement 11. Rules of Evidence. 12. Rules of Court. 13. Pleadings and pre-trial motion practice. 14. Pre-trial discovery. 15. Trial strategy and tactics. 16. Jurisdictional problems and venue 17. Ethics. 18. Fees and retainers. 19. Investigation and legal research. 20. Rules of Professional Conduct.

D. WORKERS' COMPENSATION LAW

1. Title 34. 2. Compensability. 3. Jurisdiction. 4. Claim filing Procedures and Answers thereto. 5. Calculations of Wage and Rate. 6. Motion Practice. 7. Discovery. 8. Eligibility for Temporary, Medical and Permanent Disability. 9. Second Injury Fund issues. 10. Social Security, including calculations of offsets pursuant to N.J.S.A. 34:15-95.5. 11. Dependency. 12. Cardiac and Cerebro-V ascular Injuries. 13. Occupational Injuries and Exposures, Including hearing loss. 14. State Temporary Disability Benefits. 15. Negotiations and Settlement.

App. A-25

16. Appellate Procedures. 17. Rules of Professional Conduct.

E. MUNICIPAL COURT LAW

1. Driving While Intoxicated and refusal Statutes and Case Law. 2. Other Title 39 offenses. 3. Alcotest and Breathalyzer Issues. 4. Rules of Evidence and Procedure.

5. Jurisdiction, Service of Process, and Procedure. 6. Pre-trial Procedure. 7. Pre- and Post-trial Motions. 8. Bail, Search Warrants and Suppression.

9. Municipal Court Appeals. 10. Arraignments, Pleas, Sentencing, and Judgment. 11. Pre-trial Discovery. 12. Ordinance Violations 13. Disorderly Persons, Petty Disorderly Persons and Other Non-Indictable Laws and

Offenses. 14. Fish, Gaming, and Boating Laws and Offenses. 15. Traffic offense legal issues. 16. Civil Penalties; other collateral consequences of pleas/convictions. 17. Rules Governing Practice in Municipal Court, Rule 7:1 to 7:14. 18. All other substantive, evidential and procedural areas of law within the jurisdiction of the

municipal court. 19. Rules of Professional Conduct.

App. A-26

REGULATION 302. Grading and Distribution of Results 302:1 Grading Procedures. ... no change 302:2 Notification to Applicant. ... no change 302:3 Failing Applicants; Reexamination; Review of Examination. ... no change

App. A-27

PART FOUR - CERTIFICATION OF APPLICANT REGULATION 401. Report of Determination

401:1 Grant of Certification. Successful applicants shall be recommended to the Supreme Court by the Board for certification as a civil trial attorney, criminal trial attorney matrimonial law attorney, [or] workers' compensation law attorney, or municipal court law attorney. In certifying applicants, the Supreme Court shall direct the making of an appropriate notation on the roll of attorneys. The Clerk of the Supreme Court shall then issue a document attesting to the attorney's certification, dated as of the entry of the certification on the roll of attorneys.

401:2 Withholding Certification; Effect. ... no change

REGULATION 402. Consequences of Certification

402:1 Duration of Certification. ... no change

402:2 Annual Fee. A certified attorney shall pay to the Board an annual fee [of $100] as determined by the Board [to the Board] for each certification the attorney holds. The fee shall be paid no later than January 31st of each year, except that no fee shall be due during the calendar year in which the attorney first becomes certified. An additional [$35] late fee as determined by the Board will be imposed on those attorneys who pay after the January 31st deadline of each year. Failure to pay the annual fee is grounds for termination of the attorney's certification. The Board shall annually report the names of attorneys failing to comply with the provisions of this regulation to the Supreme Court for such action as it deems appropriate.

402:3 Effect of Certification. Certification or the absence thereof shall not in any way limit the

right of an (a) (b) (c) (d) (e)

attorney to practice law in that designated area.

A certified civil trial attorney may use the designation "Certified by the Supreme Court of New Jersey as a Civil Trial Attorney;" A certified criminal trial attorney may use the designation "Certified by the Supreme Court of New Jersey as a Criminal Trial Attorney;"

A certified matrimonial attorney may use the designation "Certified by the Supreme Court of New Jersey as a Matrimonial Law Attorney;" and A certified workers' compensation attorney may use the designation "Certified by the Supreme Court of New Jersey as a Workers' Compensation Law Attorney[.];" A certified municipal court law attorney may use the designation “Certified by the Supreme Court of New Jersey as a Municipal Court Trial Attorney.

App. A-28

An attorney so certified may use the above referenced designations in any dignified manner that complies with the Rules of Professional Conduct of the Supreme Court. An attorney so certified may not use any other combination of words to describe the certification.

402:4 Use of Approved Logo. ... no change 402:5 Violations; Sanctions. ... no change 402:6 Division of Fees. ... no change

402:7 Obligations of Certified Attorneys. A certified attorney is under a continuing obligation, during the duration of the certification period, to notify the Board of any malpractice action brought, fee arbitrations filed, disciplinary complaints filed, or discipline imposed on him or her within ninety days of the filing of the matter or the discipline imposed.

App. A-29

PART FIVE - RECERTIFICATION REGULATION 501. Filing for Recertification

501:1 Notice and Application. A certified attorney may file for recertification during the final twelve months of the five-year period of certification provided for by RG. 402:1. Only those qualified to practice law in New Jersey will be recertified. R. 1:21-1(a). Applications for recertification will be mailed automatically by the Secretary to the Board to those attorneys eligible for recertification. The form of application shall be approved by the Board.

The completed application for recertification shall include a current summary of the attorney's professional activities in New Jersey and must demonstrate a substantial involvement

in the area (a) (b) (c) (d)

of practice in which the attorney is certified during the five-year certification period. Civil Trial Law. ... no change Criminal Trial Law. ...no change Matrimonial Law. ... no change

Workers’ Compensation Law. ... no change

(e) (1) The Board views substantial involvement in municipal court law as possessing some, if not all, of the following characteristics:

(i) two trials per year, including DWI and refusal matters, drug possession, and disorderly and petty disorderly offenses;

(ii) motion practice; (iii) plea and sentencing dispositions; (iv) municipal court appeals; (v) regular and consistent appearances in the municipal courts

of New Jersey; and (vi) post conviction relief petitions.

(2) The Board does not consider, without further explanation, engaging exclusively in any one of the following as constituting substantial involvement:

(i) matters addressing only gaming, fishing and boating offenses; ordinance violations; disorderly and petty

disorderly persons offenses; (ii) appellate practice; and/or

(iii) only a minimal portion of the applicant's practice devoted to municipal court law as defined above.

App. A-30

Municipal Court Law.

(3) If the applicant cannot demonstrate that he or she engages in more than a minimal portion of his or her practice on municipal court matters, without explanation, the applicant will not be recertified. He or she must then comply with Part Six of these Regulations regarding termination and lapsing of certification and must remove all references to the designation of certification from letterhead, advertising, and the like. However, the applicant has up to three years following the expiration of certification to demonstrate to the Board renewed substantial involvement as defined above. Should that renewed involvement be deemed satisfactory, the applicant may apply for certification as if making an original application. If the applicant is deemed eligible for certification again, the examination requirement will be waived.

The completed application shall also include a current summary of the applicant's required educational involvement in the area of certification during the period for which he or she had been certified. See RG. [205:9] 205:6. Each applicant shall submit as references the names and addresses of three members of the Bench and five members of the Bar of this State who can attest to the applicant's reputation and competence as a certified attorney. At least one attorney shall have been an adversary in a contested matter during the period of certification. In the case of municipal court law certification, the bench refers to judges of the municipal court. An applicant may not submit as a reference the name of any member of the bench or bar with whom the applicant is or has been formally associated in the practice of law. Justices of the Supreme Court and members of the Board and the Certification Committees are not eligible as references for an applicant.

501:2 Fee. The application for recertification shall be accompanied by a non-refundable fee [of $100] as determined by the Board in a check or money order made payable to the [Secretary of the Board] Treasurer, State of New Jersey.

501:3 Supplemental Information; Disposition. ... no change. 501:4 Conditional Recertification. ... no change 501:5 Withhold Recertification; Review. ... no change

App. A-31

PART SIX - INELIGIBILITY & TERMINATION; LAPSED CERTIFICATION 601:1 Ineligible and Inactive Certified Attorneys. ... no change 601:2 Termination of Certification. ... no change 601:3 Lapsed Certification. ... no change

App. A-32

PART SEVEN - CONFIDENTIALITY REGULATION 701. Confidentiality

701:1 Board Records. ... no change 701:2 Proceedings before the Board and Certification Committees. ... no change 701:3 Applicant Access to Records. ... no change 701:4 Waiver. ... no change.

App. A-33

**** *

Regulations of the Board on Attorney Certification

Adopted: May 15, 1980 Effective: September 8, 1980 Amended Thru: November 2, 1992 Former Regulations Deleted and New Regulations Adopted: June 28, 1996 Amended Thru: March 22, 2011

Amendments to the following Regulations adopted July 20, 2011 to be effective September 1, 2011: Regulations 102:1, 102:3, 103:1, 103:3, 202:1, 202:3, 203:1, 203:2, 203:3, 203:4 (new), 204:1, 205:1, 205:2, 205:3, 205:4, 205:5 (replaces former 205:5, here deleted), 205:6, 205:7 (deleted), 205:8 (deleted), 205:9 renumbered as 205:7, 206, 301:3, 301:6, 401:1, 402:2, 402:3, 402:7, 501:1, 501:2.

App. A-34

What is the Pretrial Intervention Program (PTI)?

2011-06-22T12:51:00.001-07:00

What is the Pretrial Intervention Program (PTI)?

Edited by Kenneth Vercammen, Esq., from the NJ Judiciary information sheet.

The Pretrial Intervention Program (PTI) provides defendants, generally first-time offenders, with opportunities for alternatives to the traditional criminal justice process of ordinary prosecution. PTI seeks to render early rehabilitative services, when such services can reasonably be expected to deter future criminal behavior. The PTI program is based on a rehabilitative model that recognizes that there may be an apparent causal connection between the offense charged and the rehabilitative needs of a defendant. Further, the rehabilitative model emphasizes that social, cultural, and economic conditions often result in a defendant’s decision to commit crime.

Simply stated, PTI strives to solve personal problems which tend to result from the conditions that appear to cause crime, and ultimately, to deter future criminal behavior by a defendant. Source: PTI Program Summary & Application.

What Are the Benefits of the Pretrial Intervention Program (PTI)?

If PTI is successfully completed, there is no record of conviction and the defendant avoids the stigma of a criminal conviction. Although no record of a conviction exists, a defendant may want to file for an expungement to remove any record of the original arrest.

Early intervention allows rehabilitative services to be provided soon after the alleged offense, in an attempt to correct the behavior that led to the offense.

Some of the costs associated with the formal court process are eliminated through acceptance into PTI.

PTI provides early resolution of a case, which serves the interests of the victim, the public and the defendant.

PTI reduces the burden on the court and allows resources to be devoted to more serious criminals. Source: PTI Program Summary & Application

What are the Conditions for Participation in Pretrial Intervention?

Supervision under the PTI program may run from 12 months to three years and is provided by the Probation Division. Certain standard conditions are imposed on those accepted into PTI, such as, random urine monitoring, and assessments of fees, penalties and fines. Additional conditions may also be imposed to require the performance of community service, payment of restitution, and submission to psychological and/or drug and alcohol evaluations with compliance to recommended treatment programs.

If a defendant successfully completes all the conditions of PTI, then the original charges are dismissed on the recommendation of the Criminal Division Manager with consent by the prosecutor, and there is no record of conviction.

If a defendant does not successfully complete the conditions of PTI, then the defendant is terminated from the PTI program and the case is returned to the ordinary course of prosecution.

Who is Eligible for Pretrial Intervention (PTI)?

Any defendant who is charged with an indictable offense may apply.

Admission guidelines stated in the Court Rules set the following criteria:

Age - PTI is designed for adults.

Jurisdiction - Only defendants charged with indictable offenses in New Jersey may apply.

Minor Violations - Charges that would likely result in a suspended sentence without probation or a fine are generally not eligible. Those charged with ordinance, health code and other similar violations are not eligible.

Prior Record of Convictions - PTI generally excludes defendants who have been previously convicted.

Parolees and Probationers - Generally excluded without prosecutor’s consent and considered only after consultation with parole and probation departments.

Defendants Previously Diverted - Excludes defendants who have previously been granted a diversionary program or conditional discharge.

How Does One Apply for Pretrial Intervention?

Applications to PTI must be made no later than 28 days after indictment. There is a $75 non-refundable application fee. In certain instances, this fee may be waived.

The application process includes an interview with the defendant by a staff member of the Criminal Division of the Superior Court. A written report is prepared detailing the decision for admittance or rejection into the PTI program. When a defendant is accepted into PTI on the recommendation of the Criminal Division, with the consent of the prosecutor and the defendant, the judge may postpone all further proceedings against the defendant for a period not to exceed 36 months.

The applicant may appeal a rejection to the Presiding Judge of the Criminal Division within 10 days of the rejection.

For representation contact:

KENNETH VERCAMMEN & ASSOCIATES, PC

ATTORNEY AT LAW

2053 Woodbridge Ave.

Edison, NJ 08817

(Phone) 732-572-0500

(Fax) 732-572-0030

website: www.njlaws.com

Quick Reference Chart For Determining The Immigration Consequences of Selected New Jersey Criminal Offenses1

2011-05-19T07:23:00.000-07:00

01/07/04

Quick Reference Chart For Determining The Immigration Consequences of Selected New Jersey Criminal Offenses1

Abbreviations and Notes:

Degree of Intent Degree of Harm Other Abbreviations

K=knowing(ly) P=purpose(ly) N=negligent(ly) R=reckless( ly)

BI=bodily injury SBI=serious bodily injury

CDS=controlled dangerous substance DW=deadly weapon MV=motor vehicle

Offense

New Jersey Code Section

Aggravated F elony (AF)?

Crime Involving Moral Turpitude (CIMT )?

Other G rounds: Controlled Substance Offense (CSO) Crime Against Children (CAC)

Crime of Dom. Viol., Etc. (CODV) Firearm Offense (FO) Prostitution

INCHOATE CRIMES

Criminal attempt

2C:5-1

An attempt to commit an AF would also be deemed an AF.

An attemp t to commit a CIMT would pro bably be considered a CIMT.

Conviction would be considered a CSO or FO if the underlying offense is a CSO or FO.

Conspiracy

2C:5-2

A consp iracy to com mit an AF w ould also be deemed an AF.

A consp iracy to com mit a CIM T would probably be considered a CIMT.

Conviction would be considered a CSO or FO if the underlying offense is a CSO or FO.

1Prepare d by Joan ne Gottesm an, Assistant C linical Profess or, Rutgers S chool of L aw-Camd en, with invaluable editorial input and guidance from Manuel D. Vargas, Director, Immigration Defense Project, New York State Defe nders Asso ciation.

The development of the Quick Reference Chart for Determining the Immigration Consequences of Selected New Jersey Criminal Offenses was sponsored by the Defending Immigrants Partnership, which is supported by grants from the Open Society Institute Gideon Project and from the Ford Foundation. Tim Block, Alice Dueker, Regis Fernandez, Leah Morris, Anne Picker, Ruth Anne Robbins, Eliezer Silver and Marianne Yang contributed valuable editorial and/or substantive assistance. Thanks are also due to Melanie Gordon and MaryAnn Purvenas for their technical su pport.

This chart is intended to warn criminal defense lawyers about the possible negative immigration consequences of a particular plea so that they may properly counsel their non-citizen clients. Advocates should be aware, however, that in many cases there are strong counter-arguments that a particular disposition should not trigger deportability or inadmissibility. For additional information on these arguments and strategies for avoiding the immigration consequences of criminal convictions, please refer to: Dan Kesselbrenner and Lory D. Rosenberg, Immigration Law and Crimes (West G roup 19 99), No rton To oby, Crimina l Defense o f Immigr ants, (Law Offices of Norton Toob y 2002), M anuel D. V argas, Represe nting No ncitizen Crim inal Defe ndants in New Yo rk State , 3d. Ed. (New York State Defenders Association 2003).

01/07/04

Offense

New Jersey Code Section

Aggravated F elony (AF)?

Crime Involving Moral Turpitude (CIMT )?

Other G rounds: Controlled Substance Offense (CSO) Crime Against Children (CAC)

Crime of Dom. Viol., Etc. (CODV) Firearm Offense (FO) Prostitution

CRIMINAL HOMICIDE

Murder

First degree

2C:11-3(a)

Yes.

Yes, for convictions under subsections (1) or (2). Whether conviction under subsection (3) is a CIMT may depend on whether the underlying offense is a CIMT.

If the victim was a current or former spo use, or similarly situated individ ual, a conviction might be considered a CODV. Conviction might also be considered a FO if the record of conviction establishes that the offense involved a firearm (as defined in 18 U.S .C. § 921(a)).

Manslaughter

First degree

2C:11-4

If term of imprisonment of at least one year is imp osed, wo uld prob ably be deemed a “crime of violence” AF.

Conviction under subsection (a) would probably considered a CIMT; conviction under (b) (1) would probably be considered a CIMT; and under (b)(2) and (3) might be considered a CIMT.

Death by auto or vessel

(b)(1), (2) Second degree (b)(3) First degree

2C:11-5

If term of imprisonment of at least one year is imp osed, wo uld prob ably be deemed a “crime of violence” AF.

Would probably be considered a CIMT.

Knowingly leaving scene of motor vehicle accident resulting in death Third degree

2C:11-5 .1

If term of imprisonment of at least one year is imposed, might be deemed a “crime of violence” AF.

Might be considered a CIMT.

01/07/04

Offense

New Jersey Code Section

Aggravated F elony (AF)?

Crime Involving Moral Turpitude (CIMT )?

Other G rounds: Controlled Substance Offense (CSO) Crime Against Children (CAC)

Crime of Dom. Viol., Etc. (CODV) Firearm Offense (FO) Prostitution

Aiding suicide

Second or fourth degree

2C:11-6

Probably NOT.

Might be considered a CIMT.

ASSAULT, RECKLESS ENDANGERING, THREATS

Simple ass ault

Disorderly persons offense

2C:12-1(a)

NO.

Conviction under (a)(1) or (a)(2) might be considered a CIMT, however if convicted under (a)(1) and the record re flect R, would probably NOT be considered a CIMT; conviction under (a)(3) might be considered a CIMT.

If the victim was a current or former spo use, or similarly situated individ ual, a conviction might be considered a CODV. Conviction under subsection (a)(2) might also be considered a FO if the record of conviction establishes that the offense involved a firearm (as defined in 18 U.S .C. § 921(a)).

Aggravated assault

(b)(1), (6) Second degree (b)(2),(7),(9), (1) Third degree (b)(3),(4 ) Fourth degree

(b)(5) T hird or fourth degree (b)(8) Second or third degree

(b)(11) Third degree

2C:12-1(b)

If term of imprisonment of at least one year is imposed, convictions under subsections (1-4) or (7-10) would probably be deemed a “crime of violence” AF. Conviction under subsections (5-6) or (11) might be deemed a “crime of violence” AF.

Conviction under subsections (1-4) or (7-10) wo uld prob ably be considered a CIMT. Conviction under (5-6) or (11) might be considered a CIMT.

If the victim was a current or former spo use, or similarly situated individ ual, a conviction might be considered a CODV. Conviction under subsections (4), (9) and (11) wou ld probably be considered a FO; conviction under subsections (2) or (3) might also be considered a FO if the record of conviction establishes that the offense involved a firearm (as defined in 18 U.S .C. § 921(a)).

Assault by auto or vessel Second, third or fourth degree, or disorderly persons offense

2C:12-1(c)

If term of imprisonment of at least one year is imp osed, wo uld prob ably be deemed a “crime of violence” AF.

Conviction under subsection (1), (2) and (3) would probably be considere d a CIM T if record of conviction establishes that offense caused SBI.

If the victim was a current or former spo use, or similarly situated individ ual, a conviction might be considered a CODV.

Knowingly leaving scene of a motor vehicle accident resulting in serious bodily injury Fourth degree

2C:12-1 .1

It term of imprisonment of at least one year is imposed, might be deemed a “crime” of violence AF.

Might be considered a CIMT.

01/07/04

Offense

New Jersey Code Section

Aggravated F elony (AF)?

Crime Involving Moral Turpitude (CIMT )?

Other G rounds: Controlled Substance Offense (CSO) Crime Against Children (CAC)

Crime of Dom. Viol., Etc. (CODV) Firearm Offense (FO) Prostitution

Endangering an injured v ictim Third degree

2C:12-1 .2

If term of imprisonment of at least one year is imposed, might be deemed a “crime of violence” AF.

Might be considered a CIMT.

If the victim was a current or former spo use, or similarly situated individ ual, a conviction might be considered a CODV.

Recklessly endangering another person Third o r fourth degree

2C:12-2

If term of imprisonment of at least one year is imposed, conviction under sub section (a) wo uld prob ably be deemed a “crime of violence” AF.

Conviction under (a) might be considered a CIMT. Conviction under (b) (2) would probably be considered a CIMT.

If the victim was a current or former spo use, or similarly situated individ ual, a conviction might be considered a CODV.

Terroristic threats

Third degree

2C:12-3

If term of imprisonment of at least one year is imposed, conviction would probably be deemed a “crime of violence” AF.

Would probably be considered a CIMT.

If the victim was a current or former spo use, or similarly situated individ ual, a conviction might be considered a CODV.

Stalking

(b) Fourth degree (c), (d), (e) Third degree

2C:12-10

If term of imprisonment of at least one year is imposed, conviction would probably be deemed a “crime of violence” AF.

Would probably be considered a CIMT.

A convictio n would p robably trigger deportability as a “crime of stalking,” or if the victim was a current or former spouse, or similarly situated individual, a conviction might also be considered a CODV.

Disarming law enforcement or corrections officer First or second degree

2C:12-11

Conviction under subsection (a) might be deemed a “crime of violence” AF; conviction under subsection (b) would probably be deemed a “crime of violence” AF.

Conviction under subsection (a) or (b) would probably be considered a CIMT.

Convictio n would p robably also be considered a FO.

Throw ing bod ily fluid at department of correction employees deemed aggra vated a ssault Third o r fourth degree

2C:12-13

If term of imprisonment of at least one year is imposed, conviction might be deemed a “crime of violence” AF.

Might be considered a CIMT.

01/07/04

Offense

New Jersey Code Section

Aggravated F elony (AF)?

Crime Involving Moral Turpitude (CIMT )?

Other G rounds: Controlled Substance Offense (CSO) Crime Against Children (CAC)

Crime of Dom. Viol., Etc. (CODV) Firearm Offense (FO) Prostitution

KIDNAPPING AND RELATED OFFENSES

Kidnapping

First or second degree

2C:13-1

If term of imprisonment of at least one year is imposed, conviction might be deemed a "crime of violence" AF depending on what the record of conviction establishes (see definition at 18 U.S.C. § 16). Conviction under subsection (b)(1) might be deemed an "obstruction of justice" AF.

Would probably be considered a CIMT.

If the victim was a current or former spo use or similarly situated individ ual, a conviction might be considered a CODV.

Criminal restraint

Third degree

2C:13-2

Would probably be considered a CIMT.

False imprisonment

Disorderly persons offense

2C:13-3

NO.

Might be considered a CIMT.

If the victim was a current or former spo use or similarly situated individ ual, a conviction might be considered a CODV.

Interference with custody Second, third or fourth degree

2C:13-4

If term of imprisonment of at least one year is imposed, conviction might be deemed a "crime of violence" AF depending on what the record of conviction establishes (see definition at 18 U.S.C. § 16). If term of imprisonment of at least one year is imposed, conviction under subsection (a)(2) or (a)(3) might be deemed an "obstruction of justice" AF.

Might be considered a CIMT.

Becaus e the victim wo uld usually be a current or former spouse or similarly situated individual, a conviction might be considered a CODV.

Criminal coercion

Third o r fourth degree

2C:13-5

If term of imprisonment of at least one year is imposed, conviction under sub section (a)(1 ) would probably be deemed a "crime of violence" AF depending on what the record of conviction establishes (see definition at 18 U.S.C. § 16), and conviction under other subsections might be deemed a “crime of violence” AF depending on what the record o f conviction e stablishes. Conviction under subsection (a)(2) or (a)(6) might be deemed an "obstruction of justice" AF.

Might be considered a CIMT.

If the victim was a current or former spo use or similarly situated individ ual, a conviction might be considered a CODV.

01/07/04

Offense

New Jersey Code Section

Aggravated F elony (AF)?

Crime Involving Moral Turpitude (CIMT )?

Other G rounds: Controlled Substance Offense (CSO) Crime Against Children (CAC)

Crime of Dom. Viol., Etc. (CODV) Firearm Offense (FO) Prostitution

Luring, enticing child Third degree

2C:13-6

If term of imprisonment of at least one year is imposed, conviction might be deemed a "crime of violence" AF depending on what the record of conviction establishes (see definition at 18 U.S.C. § 16); conviction might also be deemed a “sexual abuse of a minor” AF.

If underlying o ffense is a CIMT, conviction would probably be considered a CIMT.

If record of conviction shows purpose to comm it child abuse, child neglect, or ch ild abandonment, might be considered a CAC.

SEXUAL OFFENSES

Aggravated sexual assault First degree

2C:14-2 (a)

Conviction under subsections (1), (2),(5),(6) or (7) would probably be deemed a "rape o r sexual abu se of a minor" AF and conviction under subsections (3) and (4) might be deemed a “rape or se xual abuse o f a minor” AF, especially if record of conviction establishes sexual intercourse between the offender and victim. If term of imprisonment of one year or more is imposed, conviction under subsections (4), (5) or (6) would probably be deemed a "crime of violence" AF and conviction under subsection (3) or (7) might be deemed a "crime of violence" AF.

Would probably be considered a CIMT.

If the victim was a current or former spo use or similarly situated individ ual, a conviction might be considered a CODV. Conviction under subsection (1) and (2 ) would pr obably also be considered a CAC.

Sexual a ssault

Second degree

2C:14-2 (b)

Would probably be deemed a "rape or sexual ab use of a mino r,"AF or if term of imprisonment of at least one year is imposed, might be deemed a "crime of violence" AF.

Would probably be considered a CIMT.

If the victim was a current or former spo use or similarly situated individ ual, a conviction might be considered a CODV.

Convictio n would p robably also be considered a CAC.

Sexual a ssault

Second degree

2C:14-2 (c)

Conviction under subsection (3) or (4) would probably be deemed a "sexual abuse of a minor" AF. If term of imprisonment of at least one year is imposed, conviction under subsection (1) would probably be deemed a "crime of violence" AF and conviction under subsection (2), (3) or (4) might be deemed a "crime of violence" AF.

Would probably be considered a CIMT.

If the victim was a current or former spo use or similarly situated individ ual, a conviction might be considered a CODV. Conviction under subsection (3) or (4) would p robably also be considered a CAC.

01/07/04

Offense

New Jersey Code Section

Aggravated F elony (AF)?

Crime Involving Moral Turpitude (CIMT )?

Other G rounds: Controlled Substance Offense (CSO) Crime Against Children (CAC)

Crime of Dom. Viol., Etc. (CODV) Firearm Offense (FO) Prostitution

Aggravated criminal sexual contact Third degree

2C:14-3(a)

Conviction under subsection (a) would probably be deemed a "sexual abuse of a minor" AF if record shows that the crime was committed under the cir cumstance s set forth in subsection (1),(2), (5),(6) or (7) of 2C:14-2(a) and if under the circumstances of subsection (3) or (4) of 2C:14-2(a), might be deemed “sexual abu se of a minor ” AF if record o f conviction sh ows victim was a minor. If term of imprisonm ent of at least one year is imposed, would probably be deemed a "crime of violence" AF if record shows the crime was committed under circu mstances set fo rth in subsections (4), (5) or (6) of 2C:14- 2(a), and might be deemed a "crime of violence" AF if record of conviction shows the crime was committed under circumstances set forth in subsections (3) or (7) of 2C:14-2 (a).

Would probably be considered a CIMT.

If the victim was a current or former spo use or similarly situated individ ual, a conviction might be considered a CODV.

If the record of conviction shows that the victim was a child, convic tion would probably be considered a CAC.

Criminal sexual contact Fourth degree

2C:14-3(b)

If record shows that the crime was committed under circumstances set forth in subsection (1) or (2) of 2C:14-2(c), would probably be deemed a “sexual abuse of a minor” AF if the record shows the crime was committed under circumstances set forth in subsection (3) or (4) of 2C:14-2(c), might be deemed a “sexual abuse of a minor” AF. If term of imprisonment of at least one year is imposed, conviction under circumstances set forth in subsection (1) of 2C:14-2(c), would probably be deemed a "crime of violence" AF and conviction under the

circumstanc es as set forth in subsection (2),(3)or (4) of 2C:14- 2(c)might be deemed a "crime of violence" AF.

Would probably be considered a CIMT.

If the victim was a current or former spo use or similarly situated individ ual, a conviction might be considered a CODV.

If the record of conviction shows that the victim was a child, convic tion would probably be considered a CAC.

Lewdn ess

Disorderly persons offense

2C:14-4(a)

NO.

Might be considered a CIMT.

01/07/04

Offense

New Jersey Code Section

Aggravated F elony (AF)?

Crime Involving Moral Turpitude (CIMT )?

Other G rounds: Controlled Substance Offense (CSO) Crime Against Children (CAC)

Crime of Dom. Viol., Etc. (CODV) Firearm Offense (FO) Prostitution

Lewdn ess

Fourth degree

2C:14-4(b)

Conviction under subsection (1) might be deemed a “sexual abuse of a minor” AF.

Would probably be considere d a CIM T.

Conviction under subsection (1) might be considered a CAC.

ROBBERY

Robbery

First or second degree

2C:15-1

If term of imprisonment of at least one year is imposed, conviction under sub sections (a)(1 ) or (2) wo uld probably be deemed a “theft” or “crime of violence” AF; conviction under sub section (a)(3 ) would probably be deemed a “theft” AF; and, depending on the crime committed or threatene d, might fall into another AF catego ry.

Yes.

If conviction as crime of the first degree is based on charge that the defendant is armed with, or uses or threatens the immediate use of a dea dly weapon, conviction might be considered a FO if record of conviction establishes that offense involved a firearm.

Carjacking

First degree

2C:15-2

If term of imprisonment of at least one year is imposed: conviction under sub sections (a)(1 ) or (2) wo uld probably be deemed a “theft” or “crime of violence” AF; conviction under sub section (a)(3 ) would probably be deemed a “theft” AF and, depending on the crime committed or threatene d, might fall into another AF category; and conviction under subsection (a)(4) would pro bably be d eemed a “theft” AF.

Would probably be considered a CIMT.

ARSON, CRIMINAL MISCHIEF, AND OTHER PROPERTY DESTRUCTION

Aggravated arson

Second degree

2C:17-1(a)

If term of imprisonment of at least oneyearisimposed, wouldprobably be deem ed a “crime of violence” AF; if loss to the victim exceeds $10,000, conviction under subsection (3) might also be deemed a “fraud” AF.

Would probably be considered a CIMT.

Conviction might be considered a FO (or destructive d evice offense ) if record of conviction establishes that offense involved a “destructive device” (as defined in 18 U.S.C. § 921(a)).

If the victim was a current or former spo use or similarly situated individ ual, conviction might be considered a CODV.

01/07/04

Offense

New Jersey Code Section

Aggravated F elony (AF)?

Crime Involving Moral Turpitude (CIMT )?

Other G rounds: Controlled Substance Offense (CSO) Crime Against Children (CAC)

Crime of Dom. Viol., Etc. (CODV) Firearm Offense (FO) Prostitution

Arson

Third degree

2C:17-1(b)

Conviction under subsection (3) or (4) would probably be considered a CIMT; conviction under subsection (1), (2), or (5) might be considered a CIMT.

Conviction might be considered a FO (or destructive d evice offense ) if record of conviction establishes that offense involved a “destructive device” (as defined in 18 U.S.C. § 921(a)).

Failure to control or report dangerous fire Fourth degree

2C:17-1(c)

If term of imprisonment of at least one year is imposed, might be deemed a “crime of violence” AF.

Might be considered a CIMT.

Paying or accepting consideration to commit arson First degree

2C:17-1(d)

If term of imprisonment of at least one year is imposed and record of conviction shows a substantial step taken towards completion of an arson offense, might be deemed a “crime of violence” AF.

Would probably be considered a CIMT.

Causing or risking widespread injury or damage (a) Second or third degree

(b) Third degree (c) Fourth degree (d) Fourth degree

2C:17-2

Conviction under subsection (a) or (b) would probably be considered a CIMT, however if record of conviction shows R only, conviction under subsection (a)(2) might not be considered a CIMT. Conviction under subsection (c) or (d) might be considered a CIMT.

Criminal mischief

Third o r fourth degree

2C:17-3

If term of imprisonment of at least one year is imposed, conviction might be deemed a “crime of violence” AF depending on what the record of conviction establishes (see definition at 18 U.S.C. § 16).

If record of conviction establishes P or K intent element, as opposed to R or N, might be considered a CIMT.

Conviction under subsection (a)(1) might be considered a FO (or destructive device offense) if record of conviction establishes that offense involved a “destructive device” (as defined in 18 U.S.C. § 921(a)).

01/07/04

Offense

New Jersey Code Section

Aggravated F elony (AF)?

Crime Involving Moral Turpitude (CIMT )?

Other G rounds: Controlled Substance Offense (CSO) Crime Against Children (CAC)

Crime of Dom. Viol., Etc. (CODV) Firearm Offense (FO) Prostitution

Certain alternations of moto r vehicle trademarks, identification numbers,

prohibited

Third o r fourth degree, o r disorder ly persons offense

2C:17-6

If term of imprisonment of at least one year is imposed, might be deemed a “vehicle traffickin g” AF; if term of imprisonment of at least one year is imposed and record of conviction establishespurpose related to theft, conviction might also be deem ed a “theft” A F.

If record of conviction establishes purpose related to theft or other unlawful purpose involving moral turpitude might be considered a CIMT.

BURGLARY & OTHER CRIMINAL INTRUSION

Burglary

Second or third degree

2C:18-2

If term of imprisonment of at least one year is imp osed and conviction is in the second degree or if record of conviction establishes unlawful entry into a dwelling, would probably be deemed a “crime of vio lence” AF ; if term of imprisonment of at least one year is imposed and record of conviction establishes unlawful entry into a dwelling (see Taylor v. U.S., 495 U .S. 575 (1 990)), wo uld probably also be deemed a “burglary” AF.

Would be considered a CIMT if record of conviction establishes that the offense intended to be committed was a CIMT.

If conviction of crime of the second degree is based on charge that the defendant was armed with or displayed what appeared to be explosives or a DW, conviction might be considered a FO if record of conviction establishes that explosive was a destructive device (as defined in 18 U.S.C. § 921 (a)) or that DW was a firearm.

Criminal trespa ss - unlicensed entry of structures Fourth degree (school, school property, dwelling or research facility) or disorderly persons offense

2C:18-3(a)

If term of imprisonment of at least one year is imposed, might be deemed a “crime of vio lence” AF if record of conviction establishes unlicensed entry into a dwelling.

Probably NOT.

Criminal trespa ss - defiant trespasser Disorderly persons offense

2C:18-3(b)

NO.

Criminal trespa ss - peering into windows or other openings of dwelling places Fourth degree

2C:18-3 (c)

Probably NOT.

Might be considered a CIMT.

01/07/04

Offense

New Jersey Code Section

Aggravated F elony (AF)?

Crime Involving Moral Turpitude (CIMT )?

Other G rounds: Controlled Substance Offense (CSO) Crime Against Children (CAC)

Crime of Dom. Viol., Etc. (CODV) Firearm Offense (FO) Prostitution

Riding on lan ds; damaging property on lands Third o r fourth degree, o r disorder ly persons offense (depending on amount of loss).

2C:18-5

If term of imprisonment of at least one year is imposed, conviction under subsection (b) might be deemed a “crime of violence” AF.

If record of conviction reflects K, conviction under subsection (b) might be considered a CIMT.

THEFT AND RELATED OFFENSES

Theft by unlawful taking or disposition

2C:20-3

If term of imprisonment of at least one year is imp osed, wo uld prob ably be considered a “theft” AF.

Would probably be considered a CIMT.

Theft by deception

2C:20-4

If term of imprisonment of at least one year is imposed, might be deemed a “theft” AF. If record of conviction shows loss to th e victim of $10,0 00 or mo re, would p robably be deemed a “fraud or deceit” AF.

Would probably be considered a CIMT.

Theft by extortion

2C:20-5

If term of imprisonment of at least one year is imp osed, wo uld prob ably be deemed a “theft” offense; or conviction under subsection (a) might also be deemed a “crime of violence” AF.

Would probably be considered a CIMT.

Theft of property lost, mislaid, or delivered by mistake

2C:20-6

If term of imprisonment of at least one year is imp osed, wo uld prob ably be deemed a “theft” AF.

Would probably be considered a CIMT.

Receiving stolen property

2C:20-7

If term of imprisonment of at least one year is imp osed, wo uld prob ably be deemed a “theft” AF.

Would probably be considered a CIMT.

Fencing

2C:20-7 .1

If term of imprisonment of at least one year is imposed, might be deemed a “theft” AF; if record of conviction also shows that the “property” is a vehicle the identification number of which has been altered, conviction under subsection (b) might be deemed a “vehicle trafficking” AF.

Might be considered a CIMT.

01/07/04

Offense

New Jersey Code Section

Aggravated F elony (AF)?

Crime Involving Moral Turpitude (CIMT )?

Other G rounds: Controlled Substance Offense (CSO) Crime Against Children (CAC)

Crime of Dom. Viol., Etc. (CODV) Firearm Offense (FO) Prostitution

Theft of services

2C:20-8

If term of imprisonment of at least one year is imposed, might be deemed a “theft” AF.

Conviction under subsection (a),(b),(h),(i) or (j) would probably be considered a CIMT; conviction under subsection (c)-(g) might be considered a CIMT.

Theft by failure to make required disposition of property received

2C:20-9

If term of imprisonment of at least one year is imposed, might be deemed a “theft” offense.

Might be considered a CIMT.

Unlawful taking of means of conveyance Disorderly persons offense

2C:20-10(a)

NO.

Probably NOT a CIMT.

Unlawful taking of means of conveyance Fourth degree

2C:20-10(b)

If term of imprisonment of at least one year is imposed, might be deemed a “theft” AF.

Might be considered a CIMT.

Unlawful taking of means of conveyance Third degree

2C:20-10(c)

If term of imprisonment of at least one year is imposed, might be deemed a “theft” or “crime of violence” AF.

Might be considered a CIMT.

Unlawful taking of means of conveyance Fourth degree

2C:20-10(d)

Probably NOT.

Might be considered a CIMT.

Shoplifting

2C:20-11

If term of imprisonment of at least one year is imp osed, wo uld prob ably be deemed a “theft” AF.

Would probably be considered a CIMT.

Operation of facility for sale of stolen automobile or parts Second degree

2C:20-16

If term of imprisonment of at least one year is imposed, might be deemed a “theft”AF; or if record of conviction reflects that identification numbers h ave been altered, wou ld probab ly be deem ed a “vehicle trafficking” AF.

Would probably be considered a CIMT.

Use of ju venile in theft of automobiles Second degree

2C:20-17

If term of imprisonment of at least one year is imp osed, wo uld prob ably be deemed a “theft” AF.

Would probably be considered a CIMT.

01/07/04

Offense

New Jersey Code Section

Aggravated F elony (AF)?

Crime Involving Moral Turpitude (CIMT )?

Other G rounds: Controlled Substance Offense (CSO) Crime Against Children (CAC)

Crime of Dom. Viol., Etc. (CODV) Firearm Offense (FO) Prostitution

Leader of auto theft trafficking network Second degree

2C:20-18

If term of imprisonment of at least one year is imp osed, wo uld prob ably be deem ed a “theft” or “trafficking in vehicles” AF.

Would probably be considered a CIMT.

Computer theft

2C:20-25

Probably NOT.

Would probably be considered a CIMT.

Unauthorized use of ATP card or food stamp coupons w ith value of $150

or more

Fourth degree

2C:20-36

If term of imprisonment of at least one year is imposed, might be deemed a “theft” offense; or if record reflects loss to the government of $10,000 or more, might be deemed a “fraud” AF.

Would probably be considered a CIMT.

FORGERY AND FRAUDULENT PRACTICES

Forgery and related offenses Third o r fourth degree

2C:21-1

If sentenced to a term of imprisonment of at least one year, would probably be deemed a “forgery” AF; or if the loss to the victim(s) exceeds $10,000, might be deemed a “fraud” AF.

Yes.

Criminal simulation

Fourth degree

2C:21-2

If sentenced to a term of imprisonment of at least one year, would probably be deemed a “forgery” AF; or if the loss to the victim(s) exceeds $10,000, might be deemed a “fraud” AF.

Yes.

Driver’s license or other document issued by governmental agency to verify identity or age simulation

(a) Third degree (b) Third degree (c) Fourth degree (d) Disor derly persons offense

2C:21-2 .1

If sentenced to a term of imprisonment of at least one year, would probably be deemed a “forgery” AF.

Would probably be considered a CIMT.

Frauds related to public records and record able instruments (a)Third degree

(b) Disor derly persons offense

2C:21-3

If the loss to the victim(s) exceeds $10,000, conviction might be deemed a “fraud” A F, especially if record shows intent to deceive (as opposed to intent to injure).

Would probably be considered a CIMT.

01/07/04

Offense

New Jersey Code Section

Aggravated F elony (AF)?

Crime Involving Moral Turpitude (CIMT )?

Other G rounds: Controlled Substance Offense (CSO) Crime Against Children (CAC)

Crime of Dom. Viol., Etc. (CODV) Firearm Offense (FO) Prostitution

Bad checks

Second, third or fourth degree, or disorderly persons offense (depending on amou nt)

2C:21-5

If the loss to the victim(s) exceeds $10,000, conviction might be deemed a “fraud” AF, or if term of imprisonm ent of at least one year is imposed , might be de emed a “the ft” AF.

Would probably not be considered a CIMT.

Credit cards

2C:21-6

If the loss to the victim(s) exceeds $10,000, conviction under subsection (b), (c)(2),(4),(5), (6),(d),(e) or (h), requiring inten t to defraud, w ould probably be deemed a “fraud” AF, or if term of imprisonment of at least one year is imposed, conviction under subsection (c)(1),(2),(4), or(5) might be deemed a “theft” AF.

Conviction under subsection (b), (c)(2),(4),(5), (6),(d),(e) or (h), requiring inten t to defraud, would be considered a CIMT, conviction under other subsections might be considered a CIMT.

Deceptive b usiness practices Fourth degree or disorderly persons offense

2C:21-7

If loss to the victim exceeds $10,000, conviction under sub section (h) o r (i) might be deemed a “fraud” AF.

Conviction under subsection (h) or (i) might be considered a CIMT.

Impersonation

2C:21-17

If loss to the victim exceeds $10,000, convictions under subsections (a)(1) - (a)(4) would probably be deemed “fraud or d eceit” AF, e specially if record o f conviction re flects intent to defraud (a s oppos ed to intent to injure, obtain a benefit or services, or avoid payment of a debt, etc. ); conviction under subsection (b) might be de emed a “fra ud” AF.

Convictio n would probably be considered a CIMT.

Money laundering and illegal investment

2C:21-25

If the value of the property exceeds $10,000, conviction under subsection (b) might be deemed a state analog to federal “money laundering” AF listed at 8 U.S.C. §1101 (a)(43)(D).

If the underlying criminal activity involves moral turpitude, might be considered a CIMT.

01/07/04

Offense

New Jersey Code Section

Aggravated F elony (AF)?

Crime Involving Moral Turpitude (CIMT )?

Other G rounds: Controlled Substance Offense (CSO) Crime Against Children (CAC)

Crime of Dom. Viol., Etc. (CODV) Firearm Offense (FO) Prostitution

OFFENSES AGAINST THE FAMILY, CHILDREN AND INCOMPETENTS

Endangering the welfare of children

Second or third degree depending on relationship w ith child

2C:24-4

Especially if defendant is more than four years older than victim and record sh ows sexual c onduct with victim, conviction under subsection (a) would probably be deemed a "sexual abuse of a minor" AF and conviction under subsection (b)(3)and (4) might be deemed a “sexual abu se of a minor ” AF. Conviction under subsections (b)(3),(4), or (5), might also be deemed a "child pornography" AF.

Convictio n would probably be considered a CIMT.

Conviction would probably be considered a CAC.

Willful nonsupport

Fourth degree

2C:24-5

NO.

Might be considered a CIMT.

Might be considere d "child neglect or ab andonm ent” CAC.

Endangering the welfare of an incompetent person Disorderly persons offense

2C:24-7

NO.

Might be considered a CIMT.

Endangering welfare of elderly or disabled persons Third degree

2C:24-8

NO.

Proba bly NOT .

Use of 1 7-Yea r-Old or younger to commit criminal offense

One degree higher than underlying offense

2C:24-9

Might be considere d a AF if underlying offense is an AF.

Might be considered a CIMT if underlying offense involves MT.

PERJURY AND OTHER FALSIFICATION IN OFFICIAL MATTERS

Perjury

Third degree

2C:28-1

If term of imprisonment of at least one year is imp osed, wo uld prob ably be deemed a “perjury” AF.

Would probably be considered a CIMT.

01/07/04

Offense

New Jersey Code Section

Aggravated F elony (AF)?

Crime Involving Moral Turpitude (CIMT )?

Other G rounds: Controlled Substance Offense (CSO) Crime Against Children (CAC)

Crime of Dom. Viol., Etc. (CODV) Firearm Offense (FO) Prostitution

False swearing

Fourth degree

2C:28-2

If term of imprisonment of at least one year is imposed, might be deemed a “perjury or obstruction of justice” AF, or if the loss to any victim(s) exceeds $10,000, might be deemed a “fraud or deceit” AF. (Unlike fed eral definition o f perjury, no requirement that the false swearing is on a “material matter”).

Would probably be considered a CIMT.

Unsworn falsification to authorities (a) Fourth degree (b) Disor derly persons offense

2C:28-3

Might be considered a CIMT.

OBSTRUCTING GOVERNMENTAL OPERATIONS; ESCAPES

Obstructing administration of law or other governmental function. (a) Disord erly persons offense (b) Fourth degree

2C:29-1

If term of imprisonment of at least one year is imposed, might be deemed a “crime of violence” AF, or an “obstruction of justice” AF depending on what the record reflects.

Probably NOT.

Resisting arrest; Eluding officer (a)(1) D isorderly persons offense (a)(2) Fourth degree (a)(3) Third degree (b) Second or third degree

2C:29-2

If term of imprisonment of at least one year is imposed, conviction under sub section (a)(3 ), or of a second degree offense under subsection (b), would probably be deemed a “crime of violence” AF.

Conviction under subsection (a)(3)(a) or of a second degree offense under subsection (b) might be considered a CIMT.

Hindering apprehension or prosecution Second, third, or fourth degree or disorderly persons offense

2C:29-3

If term of imprisonment of at least one year is imp osed, wo uld prob ably be deemed an “obstruction of justice” AF .

Might be considered a CIMT .*

Bail jumping

Third o r fourth degree, d isorderly persons o r petty disorderly persons offense

2C:29-7

If convicted of the offense in the third degree, would probably be deemed a “failure to appear” AF.

No.

01/07/04

Offense

New Jersey Code Section

Aggravated F elony (AF)?

Crime Involving Moral Turpitude (CIMT )?

Other G rounds: Controlled Substance Offense (CSO) Crime Against Children (CAC)

Crime of Dom. Viol., Etc. (CODV) Firearm Offense (FO) Prostitution

Contempt

(a) Fourth degree (b) Fourth degree or disorderly persons offense.

2C:29-9

If term of imprisonment of at least one year is imposed, might be deemed an “obstruction of justice” or a “crime of violence” AF.

Might be considered a CIMT.

Might be considered a CODV or trigger deportability under "violation of protection order" provision.

RIOT, DISORDERLY CONDUCT, AND RELATED OFFENSES

Riot; Failure to disperse (a)(1), (2) F ourth degree

(a)(3) Third degree (b) Disor derly persons offense

2C:33-1

If term of imprisonment of at least one year is imposed, conviction under subsection (a) might be deemed “crime of violence” AF.

Conviction under subsection (a)(3) wou ld probably be considered a CIMT, or if underlying offense involves moral turpitude, conviction under (a)(1) might be considered CIMT.

Conviction under subsection (a)(3) would probably be considered a FO if record of conviction establishes that offense involved a firearm or destructive device (as defined in 18 U.S.C. § 921(a)).

Disorderly conduct

Petty disord erly persons offense

2C:33-2

NO.

Wandering, remaining in or prow ling public places with pu rpose of obtaining or selling controlled substances Disorderly persons offense

2C:33-2 .1

NO.

Might be considere d a CSO if record of conviction establishes a controlled substance as defined in 21 U.S.C. § 802.

False public alarms

(a) Third degree (b) Third degree (c) Second degree (e) Disord erly persons offense

2C:33-3

If term of imprisonment of at least one year is imposed, might be deemed a “crime of violence” AF.

Might be considered a CIMT.

Harassment

(a)-(d) Pe tty disorderly persons offense (e) Fourth degree

2C:33-4

If a term of imprisonment of at least one year is imposed, conviction under sub section (e), wo uld prob ably be deemed a “crime of violence” AF if record of conviction shows that basis of conviction was for an offense under subsection (b).

Might be considered a CIMT.

If victim was a current or former spo use or similarly situated individual, conviction might be considered a CODV, or trigger deportability under CODV clause regarding “crime of stalkin g.”

Obstructing highw ays or p ublic passages Petty disord erly persons offense

2C:33-7

NO.

01/07/04

Offense

New Jersey Code Section

Aggravated F elony (AF)?

Crime Involving Moral Turpitude (CIMT )?

Other G rounds: Controlled Substance Offense (CSO) Crime Against Children (CAC)

Crime of Dom. Viol., Etc. (CODV) Firearm Offense (FO) Prostitution

Causing fear of unlaw ful bodily violence Third degree

2C:33-10

If term of imprisonment of at least one year is imposed, might be deemed a “crime of vio lence” AF .

Might be considered a CIMT , particularly if record reflects P or K intent.

If victim was a current or former spo use or similarly situated individual, conviction might be considered a CODV.

Maintaining a nuisance (a),(b) Diso rderly persons offense (c) Fourth degree

2C:33-12

Conviction under subsection (c) might be deemed a “prostitution business” AF.

Conviction under subsection (a) or (b) might be considered a CIMT , particularly if under subsection (a) record reflects K intent and under (b) the underlying offense involves moral turpitude; conviction under subsection (c) would probably be considered a CIMT.

Conviction under subsection (c) might trigger “prostitution or commercialized vice” inadmissibility.

Sexually oriented business Fourth degree

2C:33-1 2.2

Probably NOT (risk that might be deemed a “prostitution business” AF less than with respect to conviction under 2C:33-12(c) because no express pr ostitution elem ent).

Might be considered a CIMT.

Conviction might trigger “prostitution or commercialized vice” inadmissibility.

Interference with transportation Second, third or fourth degree or disorderly persons offense

2C:33-14

If term of imprisonment of at least one year is imposed, conviction under subsection (c), (d) or (e) might be deemed a “crime of violence” AF.

Conviction under subsection (c) or (d) might be considered a CIMT if record reflec ts purposeful or knowing intent; conviction under subsection (e) would probably be considered a CIMT.

Possession or consumption of alcoholic beverage by person under legal age Disorderly persons offense

2C:33-15

NO.

Solicitation, recruitm ent to join street gang (a) Fourth degree (b) Third degree (c) Second degree

2C:33-28

If term of imprisonment of at least one year is imposed, conviction under sub section (b) o r (c) would probably be deemed “crime of violence” AF.

Conviction might be considered CIMT, particularly if underlying criminal conduct involves moral turpitude.

01/07/04

Offense

New Jersey Code Section

Aggravated F elony (AF)?

Crime Involving Moral Turpitude (CIMT )?

Other G rounds: Controlled Substance Offense (CSO) Crime Against Children (CAC)

Crime of Dom. Viol., Etc. (CODV) Firearm Offense (FO) Prostitution

PUBLIC INDECENCY

Prostitution and related offenses (b)(1)First time: disorderly persons offense; subse quent: fourth degree

(b)(2) T hird or fourth degree (b)(3), (4) Second degree

(b)(5),(6),(7) Third degree

2C:34-1

Conviction under subsections (b)(2)- (6) might be deemed “prostitution business” AF. Conviction under subsection (b)(3),(4) and (7) might also be deemed “sexual abuse of a minor” AF.

Convictio n would probably be considered CIMT.

Might trigger “prostitution” inadmissibility. Conviction under subsection (b)(3), (4), or (7) might also be considered a CAC.

Loitering for the purpose of engaging in prostitution Disorderly persons offense

2C:34-1 .1

NO.

Might be considered a CIMT.

Might trigger “prostitution” inadmissibility.”

Obscenity for persons 18 years of age or older Fourth degree

2C:34-2

Might be deemed a “child pornog raphy” AF if record reflec ts an offense as described in 18 U.S.C. §§ 2251, 2251A, or 2252.

Might be considered a CIMT.

Obscenity for persons under 18 Third degree

2C:34-3

Conviction under subsection (b) might be de emed a “c hild pornog raphy” AF if record reflec ts an offense as described in 18 U.S.C. §§ 2251, 2251A, or 2252. Conviction might also be deemed “sexual abuse of a minor” AF.

Might be considered a CIMT.

CONTROLLED DANGEROUS SUBSTANCES

Leader of narcotics trafficking network First degree

2C:35-3

If record of conviction establishes a controlled substance as defined in 21 U.S.C. § 802, would be deemed “drug trafficking” AF.

Would probably be considered a CIMT.

Would be considered a CSO if record of conviction establishes a controlled substance as defined in 21 U.S.C. § 802.

Maintaining or operating a controlled dangerous substance production facility First degree

2C:35-4

If record of conviction establishes a controlled substance as defined in 21 U.S.C. § 802, would be deemed a “drug trafficking” AF.

Would probably be considered a CIMT.

Would be considered a CSO if record of conviction establishes a controlled substance as defined in 21 U.S.C. § 802.

01/07/04

Offense

New Jersey Code Section

Aggravated F elony (AF)?

Crime Involving Moral Turpitude (CIMT )?

Other G rounds: Controlled Substance Offense (CSO) Crime Against Children (CAC)

Crime of Dom. Viol., Etc. (CODV) Firearm Offense (FO) Prostitution

Boob y traps in manufacturing or distribution facilities; Fortified premises

(b) First or second degree (c) Third degree

2C:35-4 .1

If record of conviction establishes a controlled substance as defined in 21 U.S.C. § 802, might be deemed a “drug trafficking” AF. If term of imprisonm ent of at least one year is imposed, conviction under subsection (b) might also be deemed a “crime of violence” AF.

Might be considered a CIMT.

Might be considere d a CSO if record of conviction establishes a controlled substance as defined in 21 U.S.C. § 802. Might also be considered a FO if record of conviction establishes that “booby trap” is a firearm or “destructive device” (as defined in 18 U.S.C. § 921(a)).

Manufacturing, distributing or dispensing First, second, third or fourth degree (Depending on substance and amount)

2C:35-5

Ashcroft, 2003 WL 22810289 (3d Cir. Nov ember 2 6, 2003 ); Steele v. Blackman, 236 F.3d 130 (3d Cir. 2001) . Please see more de tailed note at end of cha rt.

Would probably be considered a CIMT.

Would probably be considered a CSO if record of conviction establishes a controlled substance as defined in 21 U.S.C. § 802.

Employing a juvenile in a drug distribution scheme Second degree

2C:35-6

If record of conviction establishes a controlled substance as defined in 21 U.S.C. § 802, would be deemed a “drug trafficking” AF.

Would probably be considered a CIMT.

Would probably be considered a CSO if record of conviction establishes a controlled substance as defined in 21 U.S.C. § 802.

Controlled dangerous substances near or on school property Third degree

2C:35-7

Ashcroft, 2003 WL 22810289 (3d Cir. Nov ember 2 6, 2003 ); Steele v. Blackman, 236 F.3d 130 (3d Cir. 2001) . Please see more de tailed note at end of cha rt.

Would probably be considered a CIMT.

Would probably be considered a CSO if record of conviction establishes a controlled substance as defined in 21 U.S.C. § 802.

01/07/04

Offense

New Jersey Code Section

Aggravated F elony (AF)?

Crime Involving Moral Turpitude (CIMT )?

Other G rounds: Controlled Substance Offense (CSO) Crime Against Children (CAC)

Crime of Dom. Viol., Etc. (CODV) Firearm Offense (FO) Prostitution

Distributing, dispensing or possessing within 500 fee t of certa in public property Second or third degree

2C:35-7 .1

If record of conviction establishes a controlled substance as defined in 21 U.S.C. § 802, would be deemed a “drug trafficking ” AF. Ho wever, if conviction is for distribution of a small amount of marijuana, and the record of conviction does not establish remuneration, may not be considere d an AF. Wilson v. Ashcroft, 2003 WL 22810289 (3d Cir. Nov ember 2 6, 2003 ); Steele v. Blackman, 236 F.3d 130 (3d Cir. 2001) . Please see more de tailed note at end of cha rt.

Would probably be considered a CIMT.

Would probably be considered a CSO if record of conviction establishes a controlled substance as defined in 21 U.S.C. § 802.

Strict liability for drug induced deaths First degree

2C:35-9

If record of conviction establishes a controlled substance as defined in 21 U.S.C. § 802, would be deemed a “drug trafficking” AF.

Would probably be considered a CIMT.

Would probably be considered a CSO if record of conviction establishes a controlled substance as defined in 21 U.S.C. § 802.

Possession, use or being under the influence of or failure to make lawful disposition Third o r fourth degree, o r disorder ly persons offense

2C:35-10(a)

Would probably NOT be deemed a “drug trafficking” AF under current Third Circuit case law, unless conviction is for possession of more than 5g of cocaine base or any amount of flunitrazepam, in which case might be deemed “drug trafficking” AF (see Gerbier v.

Holmes, 280 F.3d 297 (3d Cir. 2002) , Steele v. Blackman, 236 F.3d 130 (3d Cir. 2001)). If later removal hearing takes place outside the Third Circuit, however, conviction for possessio n of a controlled substance as defined in 21 U.S.C. § 802, unles s as a disord erly persons offense, would probably be deemed a “drug trafficking” AF (see Yanez-G arcia, 23 I.& N. Dec. 390 (BIA 2002). Please see the note at the end of this chart for a more detailed discussion of the issues raised by a c onviction un der this section.

Would probably NOT be considered a CIMT.

Would probably be considered a CSO if record of conviction establishes a controlled substance as defined in 21 U.S.C. § 802.

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Offense

New Jersey Code Section

Aggravated F elony (AF)?

Crime Involving Moral Turpitude (CIMT )?

Other G rounds: Controlled Substance Offense (CSO) Crime Against Children (CAC)

Crime of Dom. Viol., Etc. (CODV) Firearm Offense (FO) Prostitution

Obtaining by fraud

Third degree

2C:35-13

If record reflects conviction under provision regarding obtaining a CDS by misrepre sentation, etc., wo uld probably NOT be deemed a “drug trafficking” AF under current Third Circuitcaselaw,unless convictionis for possession of more than 5g of cocaine base or any amount of flunitrazepan, in which case might be deemed “drug trafficking” AF (see Gerbier v. Holmes, 280 F.3d 297 (3d Cir. 2002 ), Steele v. Blackman, 236 F.3d 130 (3d Cir. 2001)). If later removal hearing takes place outside the Third Circuit, however, conviction under this provision would probably be deemed a “drug trafficking” AF (see In Re Yanez- Garcia, 23 I.& N. Dec. 390 (BIA 2002). Please see the note at the end of this chart for a more detailed discussion o f the issues raised by a conviction under this section. If record reflects conviction under provision regarding obtaining a CDS by misrepre sentation, etc., A ND if loss to any victim(s) exceeds $10,000 would probably also be deemed a “fraud or deceit” AF. If record reflects conviction under provision regarding obtaining a forged or fraudulent certificate AND if term of imprisonment of at least one year is imp osed, wo uld prob ably be deemed a “forgery” AF.

Would probably be considered a CIMT.

Would probably be considered a CSO if record of conviction establishes a controlled substance as defined in 21 U.S.C. § 802.

Possession of certain prescription drugs Disorderly persons offense

2C:35-24

Probably NOT an AF.

Probably NOT a CIMT.

Would probably be considered a CSO if record of conviction establishes a controlled substance as defined in 21 U.S.C. § 802.

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Offense

New Jersey Code Section

Aggravated F elony (AF)?

Crime Involving Moral Turpitude (CIMT )?

Other G rounds: Controlled Substance Offense (CSO) Crime Against Children (CAC)

Crime of Dom. Viol., Etc. (CODV) Firearm Offense (FO) Prostitution

FIREARMS, OTHER DANGEROUS WEAPONS AND INSTRUMENTS OF CRIME

Prohibited weapons and devices (a) Third degree (b) Third degree

(c) Fourth degree (d) Fourth degree (e) Fourth degree (f) Fourth degree (h) Fourth degree (j) Fourth degree (k) Disord erly persons offense

2C:39-3

If record of conviction establishes an offense akin to one described in 18 U.S.C. § 922 (g)(1), (2), (3), (4), or (5), (j), (n), (o), (p), or (r), 18 U.S.C. § 924 (b) or (h), or 26 U.S.C. § 5861, conviction under subsection (a), (b), (c), or (d) would probably be deemed a "firearm offense" AF. If term of imprisonment of at least one year is imposed, conviction under subsection (a)-(j) might also be deemed a "crime of violence" AF.

Because statute does not require intent to use, convictio n would probably not be considere d a CIM T.

Conviction under subsections (a),(b),(c) or (d) would be considered a FO if record of conviction establishes that offense involved a firearm or destructive device (as defined in 18 U.S.C. § 921(a)).

Possession of weapons for unlawful purposes (a) Second degree (b) Second degree (c) Second degree (d) Third degree (e) Fourth degree

2C:39-4

If record of conviction establishes an offense akin to one described in 18 U.S.C. § 922 (g)(1), (2), (3), (4), or (5), (j), (n), (o), (p), or (r), 18 U.S.C. § 924 (b) or (h), or 26 U.S.C. § 5861, conviction under subsection (a)-(c) would probably be deemed a "firearm offense" AF. If term of imprisonm ent of at least one year is imposed, conviction under subsection (a)-(d) might also be deemed a "crime of violence" AF.

Conviction under subsections (a)-(d) would probably be considered a CIMT; conviction under subsection (e) might be considered a CIMT.

Conviction under subsection (a)-(c) would be considered a FO if record of conviction establishes that offense involved a firearm or destructive device (as defined in 18 U.S.C. § 921(a)).

Possession of weapons during commission of certain crimes Second degree

2C:39- 4.1(1)(a)

If record of conviction establishes an offense akin to one described in 18 U.S.C. § 922 (g)(1), (2), (3), (4), or (5), (j), (n), (o), (p), or (r), 18 U.S.C. § 924 (b) or (h), or 26 U.S.C. § 5861, conviction would probably be deemed "firearm offense" AF. If underlying offense is considered a “crime of violence” (as defined in 18 U.S.C. § 16) and sentenced to term of imprisonment of at least one year, conviction might also be deemed "crime of violence" AF.

If the underlying offense involved MT, would probably be considered a CIMT.

Would be considered a FO if record of conviction establishes that offense involved a firearm or destructive device (as defined in 18 U.S.C. § 921(a)).

Might be considere d a CSO if record of conviction establishes that underlying offense involved a controlled substance as defined in 21 U.S.C. § 802.

Possession of weapons during commission of certain crimes Second degree

2C:39- 4.1(1)(b)

If sentenced to a term of imprisonment of at least one year, would probably be deemed a “crime of violence” AF.

Would probably be considered a CIMT.

Might be considere d a CSO if record of conviction establishes that underlying offense involved a controlled substance as defined in 21 U.S.C. § 802.

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Offense

New Jersey Code Section

Aggravated F elony (AF)?

Crime Involving Moral Turpitude (CIMT )?

Other G rounds: Controlled Substance Offense (CSO) Crime Against Children (CAC)

Crime of Dom. Viol., Etc. (CODV) Firearm Offense (FO) Prostitution

Possession of weapons during commission of certain crimes Second degree

2C:39- 4.1(1)(c)

If underlying offense would be considered a “crime of violence” (as defined in 18 U.S.C. § 16) and sentenced to a term of imprisonment of at least one year, might be deemed a "crime of violence" AF.

If underlying offense involved MT, conviction would probably be considered a CIMT.

Might be deemed a CSO if record of conviction establishes that underlying offense involves a controlled substance as defined in 21 U.S.C. § 802.

Unlawful possession of weapons (a), (b), (c), (e) Third degree

(d) Fourth degree

2C:39-5(a)

If record of conviction establishes an offense akin to one described in 18 U.S.C. § 922 (g)(1), (2), (3), (4), or (5), (j), (n), (o), (p), or (r), 18 U.S.C. § 924 (b) or (h), or 26 U.S.C. § 5861, conviction would probably be deemed a "firearm offense" AF. If sentenced to a term of imprisonment of at least one year, might also be deemed a "crime of violence" AF.

Becaus e no intent to use the weapon required, w ould probably NOT be considered a CIMT.

Would be considered a FO if record of conviction establishes that offense involved a firearm or destructive device (as defined in18U.S.C.§921(a)). Note that the text of subsection (d) does not specify a type of weapon and should NOT be considered a FO unless record of conviction establishes that offense involved a firearm or destructive device (as defined in 18 U.S.C. § 921(a)).

Certain persons not to have weapons (a) Fourth degree (b) Second degree.

2C:39-7

If record of conviction establishes an offense akin to one described in 18 U.S.C. § 922 (g)(1), (2), (3), (4), or (5), (j), (n), (o), (p), or (r), 18 U.S.C. § 924 (b) or (h), or 26 U.S.C. § 5861, conviction would probably be deemed a "firearm offense" AF. If sentenced to a term of imprisonment of at least one year, might also be deemed a "crime of violence" AF.

Becaus e no intent to use the weapon required, w ould probably NOT be considered a CIMT.

Would probably be considered a FO if record of conviction establishes that offense involved a firearm or destructive device (as defined in 18 U.S.C. § 921(a)).

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Offense

New Jersey Code Section

Aggravated F elony (AF)?

Crime Involving Moral Turpitude (CIMT )?

Other G rounds: Controlled Substance Offense (CSO) Crime Against Children (CAC)

Crime of Dom. Viol., Etc. (CODV) Firearm Offense (FO) Prostitution

Manufacture, transport, disposition and defacement of weapons and dangerous instruments and appliances

(a) Third degree (machine guns) (b) Third degree (sawed-off shotguns) (c) Fourth degree (firearm silencers) (d) Fourth degree (weapons)

(e) Fourth degree (defaced firearms) (f) Fourth degree (armor penetrating bullets)

(g) Third degree (assault firearms) (h) Fourth degree (large capa city ammunition magazines)

2C:39-9(a)

If record of conviction establishes that offense involved a firearm or destructive device (as defined in 18 U.S.C. § 921(a)), or an explosive device (as d efined in 18 U.S.C. § 841(c), would probably be deemed an “illicit trafficking” AF ; or if record of conviction establishes an offense akin to one described in 18 U.S.C. § 922 (g)(1), (2), (3), (4), or (5), (j), (n), (o), (p), or (r), 18 U.S.C. § 924 (b) or (h), or 26 U.S.C. § 5861, conviction would probably be deemed a "firearm offense" AF. If sentenced to a term of imprisonment of at least one year, might also be deemed a "crime of violence" AF.

Becaus e no intent to use the weapon required, conviction under subsections (a),(b), (c),(g) ,would probably NOT be considered a CIMT. Conviction under subsection (d) might be considere d a CIM T if record of conviction demonstrates that the conviction is under the provision requiring intent to use. Conviction under subsection (f) or (h) might be considered a CIMT depending on what recor d reflects regarding intended purpose.

Would probably be considered a FO if record of conviction establishes that offense involved a firearm or destructive device (as defined in 18 U.S.C. § 921(a)).

Sale of handcuffs to a person under 18 Disorderly persons offense

2C:39-9 .2

Probably NOT.

NO.

Pawn brokers; loaning on firearms (a) Third degree (b) Disor derly persons offense

2C:39-11

Conviction under subsection (a) might be de emed an “illicit trafficking” AF; or if record of conviction establishes an offense akin to one d escribed in 18 U.S .C. § 922 (g)(1), (2), (3), (4), or (5), (j), (n), (o), (p), or (r), 18 U.S.C. § 924 (b) or (h), or 26 U.S.C. § 5861, conviction might be deemed a "firearm offense" AF.

Would probably NOT be considered a CIMT.

Conviction under subsection (a) might be deemed a FO if record of conviction establishes that offense involved a firearm or destructive device (as defined in 18 U.S.C. § 921(a)).

01/07/04

Offense

New Jersey Code Section

Aggravated F elony (AF)?

Crime Involving Moral Turpitude (CIMT )?

Other G rounds: Controlled Substance Offense (CSO) Crime Against Children (CAC)

Crime of Dom. Viol., Etc. (CODV) Firearm Offense (FO) Prostitution

Training, practice or instruc tion in use, application or making of firearm, explosive device or techniqu e capab le of causing injury for illegal activity Second degree

2C:39-14

If sentenced to a term of imprisonment of at least one year, might be deemed a “crime of violence” AF; or if record of conviction establishes an offense akin to one d escribed in 18 U.S .C. § 922 (g)(1), (2), (3), (4), or (5), (j), (n), (o), (p), or (r), 18 U.S.C. § 924 (b) or (h), or 26 U.S.C. § 5861, conviction would probably be deemed a "firearm offense" AF.

Might be considered a CIMT.

Might be deemed a FO if record of conviction establishes that offense involved a firearm or destructive device (as defined in 18 U.S.C. § 921(a)).

Leader of firearms trafficking network First degree

2C:39-16

If record of conviction establishes that offense involved a firearm or destructive device (as defined in 18 U.S.C. § 921(a)), or an explosive device (as d efined in 18 U.S.C. § 841(c), would probably be deemed an “illicit trafficking” AF. If sentenced to a term of imprisonment of at least one year, might also be deemed a "crime of violence" AF.

Would probably be considered a CIMT.

Would probably be considered a FO if record of conviction establishes that offense involved a firearm or destructive device (as defined in 18 U.S.C. § 921(a)).

VEHICLE AND TRAFFIC OFFENSES

Operating motor vehicle with controlled dangerous substance or prescription legend drug in possession or in mot or vehic le

39:4-49 .1

NO.

Would probably NOT be considered a CIMT.

Would probably be considered a CSO if record of conviction establishes a controlled substance as defined in 21 U.S.C. § 802.

01/07/04

Offense

New Jersey Code Section

Aggravated F elony (AF)?

Crime Involving Moral Turpitude (CIMT )?

Other G rounds: Controlled Substance Offense (CSO) Crime Against Children (CAC)

Crime of Dom. Viol., Etc. (CODV) Firearm Offense (FO) Prostitution

Driving while intoxicated

39:4-50

Probably NOT (however may be deemed “crime of vio lence” AF if term of imprisonment of at least one year is imposed, and later removal proceedings are held in a jurisdictions in which the Court of Appeals has held DUI to be a “crime of violence” AF).

Without any aggravating circumstanc es, would probably NOT be considered a CIMT; however might be considere d CIM T if record of conviction establishes circumstance such as driving while knowing license suspended or revoked due to prior conviction for driving under influence of alcohol o r drugs. See Matter of Lopez-Meza, Int. Dec. 3423 (BIA 1999).

Would probably be considered a CSO if record of conviction establishes a controlled substance as defined in 21 U.S.C. § 802.

Reckless driving

39:4-96

NO.

Would probably NOT be considered a CIMT.

Careless driving

39:4-97

NO.

Would probably NOT be considered a CIMT.

Action in case of accident

39:4-97 .2

NO.

Would probably NOT be considered a CIMT.

Warning Regarding Convictions Under N.J.S.A. §2C:35-10(a)

While immigration judges in the Third Circuit should find that a New Jersey defendant convicted of simple drug possession under N.J.S.A. §2C:35-10(a) has not been convicted of a “trafficking” Aggravated Felony, this may not be the outcome for a New Jersey defendant who is placed in removal proceedings in another circuit.

The Board of Immigration Appeals’ Approach

The reason for this potentially divergent result, is a 2002 Board of Immigration Appeals’ decision that declined to adopt a uniform legal standard for determining when a state drug conviction constitutes a “trafficking” Aggravated Felony. Instead, the Board ruled that it would follow the law of the circuit in which the immigration case arose. Matter of Yanez Garcia, 23 I&N Dec. 390 (BIA 2002). Where a circuit court had not previously decided the issue, it would follow the interpretation of the majority of circuits. The majority of circuit courts had determined that a state drug offense classified as a felony under state law was a “trafficking” Aggravated Felony when it was also punishable under one of certain specified federal statutes (the Controlled Substances Act, the Controlled Substances Import and Export Act, or the Maritime Drug Law Enforcement Act) . The Board then followed the majority rule in Matter of Yanez-Garcia to find that the respondent’s Illinois conviction for simple drug possession was a “trafficking” Aggravated Felony because it was classified as a felony in Illinois and punishable under the Controlled Substances Act.

The Third Circuit Court of Appeals’ Approach

In contrast to the majority rule, the Third Circuit Court of Appeals has established a different two-pronged test for determining whether a state drug conviction constitutes a “trafficking” Aggravated Felony. Gerbier v. Holmes, 280 F.3d 297 (3d Cir. 2002). Under this approach, a state drug conviction is an Aggravated Felony if it is either: (1) a state law felony containing a “trafficking element” (unlawful trading or dealing); or (ii) punishable as a felony under the federal Controlled Substances Act (CSA). The defendant in Gerbier had been convicted of drug possession, which while a felony under Delaware law, did not contain a “trafficking” component and was not punishable as a felony under the CSA. Therefore, the Court of Appeals found that it was not a “trafficking” Aggravated Felony. Similarly, because N.J.S.A.§2C:35-10(a) does not contain a “trafficking element” and is not punishable as a felony under the CSA (unless the conviction is for more than five grams of cocaine base or any amount of flunitrazepam) it should not be deemed a “trafficking” Aggravated Felony in the Third Circuit. While a subsequent state simple possession offense will also not be deemed punishable as a felony under the CSA in the Third Circuit under Steele v. Blackman, 236 F.3d 130 (3d Cir. 2001), this may not be the case in other circuits. See e.g. U.S. v. Simpson, 319 F.3d 81 (2d Cir. 2002, as amended Jan. 23, 2003).

Professional Responsibility of New Jersey Criminal Defense Attorneys

Because the law of the circuit where the immigration proceeding is held will dictate the outcome, New Jersey criminal defense lawyers should warn their clients about the possible risk of an Aggravated Felony determination when they plead to third or fourth degree simple drug possession, or to any conviction under N.J.S.A. §2C:35-10(a), including a disorderly persons offense, if it would follow a prior controlled substance offense conviction. In addition, when entering a plea to this section, it may be

01/07/04

advisable to ensure that the record reflects the non-citizen defendant's reliance on the Court of Appeals' decisions in Gerbier v. Holmes and/or Steele v. Blackman. This may preserve defenses for an immigration attorney representing the noncitizen in a later removal proceeding in another jurisdiction.

Note on convictions for possession with intent to distribute small amounts of marijuana without remuneration

In Wilson v. Ashcroft, 2003 WL 22810289 (3d Cir. November 26, 2003), the Third Circuit Court of Appeals found that Appellant's conviction under N.J.S.A. 2C35-5 for possession of twenty-eight grams of marijuana with intent to distribute was not a conviction of an aggravated felony under the "hypothetical felony" approach laid out in Gerbier v. Holmes, supra. The Court reasoned that because the offense does not involve sale for remuneration as an element, under 21 U.S.C. Sec. 841(b) it may be punishable under federal law as a misdemeanor. The Court then remanded the case to determine whether or not the offense should be deemed an aggravated felony under the state felony approach laid out in Gerbier. While the final outcome is still unclear, there is a possibility that because sale for remuneration is not a required element, the courts may find that the offense does not contain a "trafficking element" and therefore is not an Aggravated Felony under this approach.

Additional Resources

For the statutory definition of an “illicit trafficking” Aggravated Felony, see I.N.A. §101(a)(43)(B). For additional information regarding this complicated issue, please refer to the practice alerts found on the website of the New York State Defenders Association Immigrant Defense Project at:

http//www.nysda.org/NYSDA_Resources/Immigrant_Defense_Project/03_IMMIGRANTDEFENSEALERT_DrugAlertsCombin ed_.pdf

01/07/04

source: http://www.sikhcoalition.org/documents/QuickReferenceChartforDeterminingtheImmigrationConsequencesofSelectedNewJerseyCriminalOffens.pdf

DEFENDING A MUNICIPAL COURT APPEAL

2011-03-27T16:18:00.000-07:00

DEFENDING A MUNICIPAL COURT APPEAL

A Primer for Assigned Counsel

Working Group on Pro Bono Attorney Training Materials—Municipal Court Appeals

Hon. Louis J. Belasco, Jr., P.J.M.C.

Krista K. Carbone, DVS

Hon. Harry Carroll, P.J.S.C., Chair

Arnold N. Fishman, Esq.

John Jingoli, Assistant Prosecutor

Lilia Lopez, MDM

Mitchel Ostrer, J.S.C.

Robert E. Ramsey, Esq.

Carol A. Welsch, Esq., Assistant Chief

February – 2011

TABLE OF CONTENTS

CHAPTER 1: ASSIGNMENT....................................................................................4

CHAPTER 2: THE APPEAL PROCESS...................................................................5

CHAPTER 3: BAIL AND STAYS..............................................................................6

CHAPTER 4: PREPARING THE APPEAL.............................................................12

CHAPTER 5: BRIEF & TRIAL................................................................................14

CHAPTER 6: COMMON ISSUES...........................................................................16

CHAPTER 7: SENTENCING..................................................................................23

CHAPTER 8: APPEAL TO THE APPELLATE DIVISION.....................................30

APPENDIX A

NOTICE OF MUNICIPAL COURT APPEAL…………………………………….…………31

APPENDIX B

TRANSCRIPT REQUEST – MUNICIPAL COURT………………………………….…….32

APPENDIX C

CERTIFICATION OF TIMELY FILING……………………………………………….……..33

APPENDIX D

DETERMINING THE PROSECUTING ATTORNEY…………………………………..….34

APPENDIX E

SAMPLE BRIEF……………………………………………………………………….………35

APPENDIX F

DIRECTORY OF SUPERIOR COURT CLERK’S OFFICE …………………………..…44

CHAPTER ONE – ASSIGNMENT

You have been assigned to represent an indigent defendant in a municipal court appeal. The purpose of this chapter is to explain how you were assigned a pro bono case.

In Madden v. Delran, 126 N.J. 591 (1992), the Supreme Court reaffirmed the bar’s duty to represent indigent defendants without pay where the Legislature has made no provision for the Public Defender to represent defendants who are entitled to counsel. The Court recognized that it was placing a burden on the bar that should be more generally shared by the public at large. The Court said: “We realize it is the bar that is bearing the burden . . . . We trust that the bar understands the strong policy considerations that have persuaded us. As has so often been the case, it is the bar that makes the system work, often without compensation.” Id. at 614.

Attorneys are assigned from the mandatory pro bono list to represent defendants who are appealing a municipal court decision. An appeal from a municipal court decision must be filed within 20 calendar days of the court’s decision as per Rule 3:23-2. The Rule states that an appeal should be filed in the municipal court first and then, within five days of that filing, with the Superior Court.

Attorneys are assigned pro bono cases through the pro bono computer system which was developed, and is currently maintained, by the Administrative Office of the Courts. The Supreme Court in Madden chose the current system of pro bono assignments in an effort to spread the burden among as many attorneys as possible. The system maintains a list of attorneys eligible for pro bono assignment in each county. The attorneys are in the order mandated by the Supreme Court in Madden; that is, the attorneys are ordered by the number of pro bono cases the attorney has done in the past and then alphabetically. At the top of the list are the attorneys who have never been assigned a pro bono case, in alphabetical order. Next on the list are attorneys who have only been assigned one case, in alphabetical order, etc. Attorneys are called upon whenever their name reaches the top of the list. Notification is made by letter or phone call. The number of pro bono cases an attorney is required to do depends on the number of attorneys in the county and the number of pro bono assignments in that county.

When a pro bono attorney is needed, the pro bono coordinator assigns the case to the next attorney on the computer generated pro bono list. Attorneys are not required to do a certain number of hours per year; rather, attorneys are required to complete an assigned pro bono case, no matter how many hours that may require.

CHAPTER TWO-THE APPEAL PROCESS

You were assigned a pro bono municipal appeal matter. A municipal appeal may be filed by defendants and/or attorneys at any time within the required time limitations. A Notice of Municipal Court Appeal (Appendix A) is completed by defendants after the municipal court has rendered its decision. Additionally, the Transcript Request (Appendix B) and Certification of Timely Filing (Appendix C) are also required to be completed by defendants and/or attorneys and submitted to the municipal court. The municipal appeal is to be served on the appropriate prosecuting attorney. Please refer to (Appendix D), Determining the Prosecuting Attorney.

An appeal of a municipal court decision must be filed within 20 calendar days of the court’s decision as per Rule 3:23-2. An appeal shall be filed in the municipal court first and then, within five days of that filing, a copy thereof shall be served on the prosecuting attorney and one copy shall be filed with the Criminal Division Manager’s Office in the Superior Court. The 20 day time limit is an absolute and, according to court rules, not enlargeable. If it is received after the allotted time, the appeal is returned to the appellant.

Once an attorney has been assigned to the appeal, a pro bono letter is generated. Copies are provided to the Assignment judge, prosecutor’s office, appellant, and municipal court with a notification to order the transcript (original and two copies) at the States expense. The attorney assigned to the case and the prosecutor are provided with a copy of the notice of appeal along with the pro bono letter. The original letter will be kept by the Superior Court Appeals Clerk.

If the person filing the appeal is incarcerated, a different pro bono letter is used. The only difference between the two letters is when the appellant is incarcerated, the name of the institution where the appellant is located is included so the attorney will be able to contact him or her. A copy of the pro bono letter is forwarded to the appellant at the appropriate jail or prison and also mailed to the appellant’s home address. All other information will remain the same.

A notice fixing the date of the hearing is prepared after the transcript has been received and the date has been obtained from the judge’s team leader. Copies are then mailed to the pro bono attorney, appellant, and prosecutor’s office to the township/borough attorney, along with a copy of the transcript and calendar.

On the scheduled hearing date, the Superior Court judge reviews the transcript (produced from the audio recording of the trial) and any other evidence or legal papers from the trial and makes a decision regarding the case. New testimony or evidence is generally not admitted for the appeal.

CHAPTER THREE- BAIL AND STAYS

While an appeal is pending, an appellant may (1) seek a stay of non-custodial aspects of the municipal court sentence; (2) seek bail from the Superior Court if the appellant is in custody upon a sentence of incarceration by the municipal court. This chapter will discuss these two forms of relief.

Stay of Non-Custodial Aspects of Sentence

This section will review the relevant rules and the standard governing a request for a stay, and then offer practical advice regarding the request for a stay.

1. Relevant Rules

The authority for a stay pending appeal is found in both Part VII of the Rules of Court, governing municipal practice, and Part III, governing criminal practice.

Rule 7:13-2 invests stay authority in both the municipal court – “the court in which the conviction was had” – and the Superior Court – “the court . . . to which the appeal is taken.” Rule 7:13-2 states: “Notwithstanding R. 3:23-5, a sentence or a portion of a sentence may be stayed by the court in which the conviction was had or to which the appeal is taken on such terms as the court deems appropriate.”

Rule 3:23-5, in turn, addresses both forms of “Relief Pending Appeal” – bail and a stay. Subsection (a) refers to bail and is found in the discussion below regarding bail. Subsections (b) and (c) refer to stays of fine and probation. The stay-related subsections state:

(b) Relief from Fine. A sentence to pay a fine, a fine and costs, or a forfeiture may be stayed by the court in which the conviction was had or to which the appeal is taken upon such terms as the court deems appropriate. (c) Relief from Order for Probation. An order for probation may be stayed if an appeal is taken.

[R. 3:23-5].

Thus, although Rule 3:23-5 refers only to a stay of a fine, forfeiture, or probation, Rule 7:13-2 is not so limited and apparently authorizes the stay of any other non-custodial aspect of a sentence; for example, a community service obligation.

A separate rule provides for an automatic stay of a municipal court order suppressing evidence upon the State’s timely appeal. Consequently, if a pro bono attorney represents a defendant as respondent on appeal, he or she should be aware that the suppression order shall be stayed. Rule 7:5-2(c) states:

(1) Order Granting Suppression. An order granting a motion to suppress evidence shall be entered immediately upon decision of the motion. Within ten days after its entry, the municipal court administrator shall provide a copy of the order to all parties and, if the county prosecutor is not the prosecuting attorney, also to the county prosecutor. All further proceedings in the municipal court shall be stayed pending a timely appeal by the State, pursuant to R. 3:24. The property that is the subject of the suppression order shall, if not otherwise subject to lawful detention, be returned to the person entitled to it only after exhaustion by the State of its right to appeal.

Lastly, counsel should be aware that special provisions govern an application to stay an order of forfeiture of public office associated with a conviction of a disorderly person or petty disorderly persons offense involving or touching upon public office. See N.J.S.A. 2C:51-2(a)(2) (providing for forfeiture of office by anyone convicted of an offense involving or touching upon such office); N.J.S.A. 2C:51-2(e) (providing for waiver of forfeiture upon State’s application in cases of disorderly persons or petty disorderly persons offense); N.J.S.A. 2C:51-2(c) (setting standard for stay of forfeiture pending appeal).

Counsel may also wish to compare the above-cited rules with the rules governing stays of sentence pending appeal to an appellate court. Rule 2:9-3(c) authorizes a stay of a fine or probation pending appeal but expressly provides that the court may require the appellant to deposit the fine and costs, to post a bond, or to submit to an examination of assets, or the court may restrain the appellant from dissipating assets.

2. Standard for Stay Pending Appeal

The Rules do not expressly dictate the factors the court must consider regarding a stay of non-custodial aspects of a sentence pending appeal. However, a court may be guided by the standard governing a stay of civil judgments. An appellant must satisfy three pre-conditions:

(1) [I]rreparable harm will result from enforcement of the judgment pending appeal; (2) the appeal presents a meritorious issue, and movant has a likelihood of success on the merits; and (3) assessment of the relative hardship to the parties reveals that greater harm would occur if a stay is not granted than if it were.

[McNeil v. Legislative Apportionment Comm’n, 176 N.J. 484, 486 (2003) (LaVecchia, J., dissenting)].

The three-part test is the same test that applies to requests for injunctive relief, as set forth in Crowe v. DeGioia, 90 N.J. 126, 132-34 (1982). McNeil v. Legislative Apportionment Comm’n, supra, 176 N.J. at 486 (LaVecchia, J., dissenting). See also In re: Commissioner of Insurance, 256 N.J. Super. 553, 560 (App. Div. 1992) (applying Crowe v. DeGioia injunction standards to request for stay pending appeal).

An applicant must establish each of the three factors by clear and convincing evidence. Waste Management of New Jersey, Inc. v. Union County Util. Auth., 399 N.J. Super. 508, 520 (App. Div. 2008). However, counsel should be mindful that, “although it is generally understood that all the Crowe factors must weigh in favor of injunctive relief, a court may take a less rigid view than it would after a final hearing when the interlocutory injunction is merely designed to preserve the status quo.” Waste Management of New Jersey, Inc. v. Union County Util. Auth., supra, 399 N.J. Super. at 520. (citations omitted).

3. Practical Issues

Counsel seeking a stay should be aware of the following practical issues:

Requesting relief from municipal court. Some Superior Court judges may require the applicant to seek the stay first from the municipal court. Although the rules governing municipal appeals do not expressly require this, the analogous rules governing appellate practice do. See, R. 2:9-3(c) (stating that a fine or probationary sentence may be stayed by the trial court, and if denied, the application may be renewed before the appellate court); R. 2:9-5(b) (authorizing a stay of a civil judgment, but providing that the motion shall first be made to the court that entered the judgment and then, if denied, to the appellate court).

If a stay has not already been sought from the municipal court, counsel may want to inquire of the Law Division judge who will hear the stay application whether he or she requires the defendant to first seek the stay from the municipal court.

The 20-Day Stay. Some municipal court judges may stay all or a portion of their sentence for 20 days only. That period coincides with the time by which an appeal must be filed. If counsel enters the case before the 20-day stay expires, counsel will want to move swiftly to seek a stay from the Law Division. Pro bono counsel will usually enter the case long after such a 20-day stay has expired. However, execution of the sentence for one reason or another may not have been accomplished. Counsel will want to move swiftly to seek to restore the stay.

Cognizable Evidence. In satisfying the three-part test described above, counsel should be mindful that it is inappropriate to submit certifications of counsel regarding the alleged hardships or injury that the appellant would suffer. A certification or affidavit from the defendant, or other cognizable evidence, is required. R. 1:6-6.

“On such terms as the court deems appropriate”. Counsel should be prepared to suggest conditions of the stay that would be appropriate under the circumstances of the case as authorized by Rule 7:13-2. For example, if a defendant is appealing a license suspension for a driving-under-the-influence conviction, a court may condition the stay upon installation of an ignition interlock device that would address to some extent the public’s interest in removing impaired drivers from the roads, and thereby address the “balance of the equities” factor under Crowe. A court may also require regular drug testing as a condition of a stay if the case involved driving under the influence of drugs.

Confer with your adversary. Before filing your stay application, counsel would be well-advised to identify the assistant prosecutor who will be handling the matter and explore whether the State would consent to a stay and, if so, under what conditions. (See Appendix D) However, even if consent is obtained, counsel should still be prepared to justify the requested relief if required by the court.

Bail Pending Appeal

This section will review the relevant rules that expressly set forth the standard governing a request for bail pending appeal, and then offer practical advice regarding the request for bail.

1. Relevant Rules and Standards

The authority for bail pending appeal is found in both Part VII of the Rules of Court, governing municipal practice, and Part III, governing criminal practice. The municipal court judge has the authority to grant bail and indeed should impose bail according to the Rule, only if the court has significant reservations regarding defendant’s appearance.

Rule 7:4-8 provides:

When a sentence has been imposed and an appeal from the judgment of conviction has been taken, the trial judge may admit the appellant to bail within 20 days from the date of conviction or sentence, whichever occurs later. Bail after conviction may be imposed only if the trial judge has significant reservations about the appellant's willingness to appear before the appellate court. The bail or other recognizance shall be of sufficient surety to guarantee the appellant's appearance before the appellate court and compliance with the court's judgment. Once the appellant has placed bail or filed a recognizance, if the appellant is in custody, the trial court shall immediately discharge the appellant from custody. The court shall transmit to the vicinage Criminal Division Manager any cash deposit and any recognizance submitted.

However, if pro bono counsel’s client is incarcerated when representation begins, the application for bail should be made to the Law Division, under Rule 3:23-5(a). That rule mandates the grant of bail. It states, “If a custodial sentence has been imposed, and an appeal from the judgment of conviction has been taken, the defendant shall be admitted to bail by a judge of the Superior Court in accordance with the standards set forth in R. 3:26-1a.” (Emphasis added). Those standards are the same that govern pre-conviction bail in cases originating in Superior Court.

Rule 3:26-1(a) sets forth the factors that the court must consider:

The factors to be considered in setting bail are: (1) the seriousness of the crime charged against defendant, the apparent likelihood of conviction, and the extent of the punishment prescribed by the Legislature; (2) defendant's criminal record, if any, and previous record on bail, if any; (3) defendant's reputation, and mental condition; (4) the length of defendant's residence in the community; (5) defendant's family ties and relationships; (6) defendant's employment status, record of employment, and financial condition; (7) the identity of responsible members of the community who would vouch for defendant's reliability; (8) any other factors indicating defendant's mode of life, or ties to the community or bearing on the risk of failure to appear, and, particularly, the general policy against unnecessary sureties and detention. In its discretion the court may order the release of a person on that person's own recognizance.

In applying these factors, counsel may argue that defendant is presumed innocent, inasmuch as the State must prove the defendant’s guilt anew based on de novo review of the municipal court record. On the other hand, “the apparent likelihood of conviction” covered in Factor #1 may tend to support a higher bail, inasmuch as the municipal court already found the evidence sufficient to convict after a plenary trial or a plea of guilty.

Pro bono counsel should also be mindful that the court may impose conditions upon bail. “The court may also impose terms or conditions appropriate to the defendant's release including conditions necessary to protect persons in the community.” R. 3:26-1(a). See, N.J.S.A. 2C:25-26(a) (stating that where a court releases on bail a defendant charged with a crime of domestic violence, “the court authorizing the release may as a condition of release issue an order prohibiting the defendant from having any contact with the victim….”).

2. Practical Issues

Bail conditions in general. As noted above, the court has the power to impose conditions on bail. No-contact orders are commonly imposed as a condition of bail involving domestic violence or another act of violence against a person. However, counsel should be prepared to propose other conditions of bail that might assist in persuading the State and the court of the appropriateness of bail. For example, in a case of bail pending appeal from a DUI conviction involving a custodial sentence, the appellant may propose installation of an ignition interlock or restrictions on driving as a condition of bail.

No-contact conditions. Counsel should also be aware that a no-contact condition of bail is separate and distinct from no-contact restrictions in a domestic violence restraining order. Thus, if the alleged victim voluntarily dismisses the domestic violence complaint, and the restraints are consequently dissolved, the no-contact bail conditions would be unaffected. Moreover, the court may find that notwithstanding the dismissal of the domestic violence case, the bail conditions should remain in place. Indeed, in some cases, the victim may voluntarily dismiss the domestic violence complaint because the victim knows that the criminal case is still pending and she or he is protected by the no- contact condition of bail. The victim also may wish to avoid creating the impression that she or he is the one pressing charges, out of fear of retaliation.

Confer with your adversary. Before applying for bail, counsel may wish to confer with the prosecutor to determine if the request for bail can be made with consent. (See Appendix D)

CHAPTER FOUR- PREPARING THE APPEAL

You have received an appointment letter to represent an indigent defendant in his/her appeal (trial de novo on the record) to the Superior Court Law Division from a conviction in the municipal court. You have determined that the appeal has been properly filed and served and the transcripts of all the appearances in the court below have been ordered.

Once the transcript is received by the Superior Court, that court will enter an order fixing the dates for the filing of the defendant’s brief, the State’s response, and the hearing. After you have read the transcript, it is imperative that you contact both the defendant and the attorney (generally the municipal public defender) who tried the case below to assist you with the issues to be presented in the appeal.

It is important that you call the municipal court administrator and/or the Superior Court judge’s law clerk to make certain that all of the exhibits that were introduced into evidence in the municipal court were transmitted to the Superior Court and that you have a copy of each of them. This is particularly important with respect to any audio/video recordings.

You must meet with your client to explain the procedure and to impress upon him/her that his/her failure to appear at the hearing renders the appeal subject to dismissal. Should the client fail to respond to a letter or phone call from you, you are obliged to make reasonable efforts to locate him/her. The client should be made to understand that testimony will not be taken, but that the court will rely upon oral argument, the brief, and the transcript(s) from the court below. You are now ready to brief the issues presented by the transcript and agreed upon by the client. (See Chapter Five.)

At the hearing, be prepared to carry the burden of moving forward. While the burden of proof has not shifted; i.e., the State must prove the defendant’s guilt beyond a reasonable doubt, many courts will expect you to argue first since your client has already been convicted and it is his/her appeal. The transcript must support all of your arguments unless you are in the rare position where the Superior Court will permit the record to be supplemented. Some examples of this are when the record is incomplete, unintelligible, or when the court below erred in sustaining an objection to proffered evidence on behalf of the defense. The Superior Court has the option of remanding the matter back to the municipal court to complete the record.

You and your client must be prepared for sentencing. (See Chapter Seven) Your client may face the immediate execution of the sentence. In that case, he/she must be prepared to satisfy the fines, costs, restitution, and other penalties or make arrangements for time payments. Your client may be required to surrender his/her driver’s license and perhaps even to be incarcerated. Any arguments and supporting evidence against aggravating and in favor of mitigating factors should be presented. For any charge alleging a violation of Title 39, the Motor Vehicle Code, you should have

and be familiar with your client’s driving record. (Motor Vehicle Commission certified driver’s abstract) Remember that any legal sentence imposed by the court below may not be increased on appeal. “However, the Law Division retains the power to correct an illegal sentence. (See Chapter Seven).” Finally, talk to attorneys who can give you insight as to the judge before whom you are appearing and the prosecutor who will be your adversary.

CHAPTER FIVE-BRIEF & TRIAL

I) Standard of Review

State v. Johnson, 42 N.J. 146 (1964)

State v. Loce, 267 N.J. Super. 102 (Law Div. 1991), aff’d o.b., 267 N.J. Super 10 (App. Div.) certif. denied, 134 N.J. 563 (1993)

With regard to the standard of review for this appeal, this is a trial de novo and as such, the court’s “function is to determine the case completely anew on the record made in the municipal court, giving due, although not necessarily controlling, regard to the opportunity of the magistrate to judge the credibility of the witnesses.” State v. Johnson, 42 N.J. 146, 157 (1964). Additionally, although the court “must make original findings and rulings on the evidence,” the evidence to be considered is limited to the “record created in the municipal court.” State v. Loce, 267 N.J. Super. 102, 104 (Law. Div. 1991), aff’d o.b., 267 N.J. Super. 10 (App. Div.), certif. denied, 134 N.J. 563 (1993).

II) Format of Brief

1) Letter Brief

a) Opening

Dear Judge _____________,

Please accept this letter brief in lieu of a more formal brief in support of defendant’s appeal from the denial of his Motion to Suppress, Conviction and Sentence entered in the Hamilton Township Municipal Court on November 2, 2005.

b) Procedural History – from first court appearance through filing of appeal

c) Statement of Facts

i) This is a trial de novo on the record made below. Facts taken from the transcript are cited as T (transcript) in municipal court there is often more than one hearing date, and a transcript from each date that will have a footnote at the first cite indicating the number of transcripts.

Example: T2, p.20, l.12-16

d) Legal Argument

i) Point I – Example – officer did not have probable cause to stop defendant’s auto

ii) State did not prove defendant violated the statute beyond a reasonable doubt

iii) Etc.

e) Conclusion

III) Trial/Oral Argument

1) Defendant needs to be present

a) if the defendant is convicted again, he will need to be sentenced.

b) the original sentence is usually imposed but argument can be made for a lesser sentence if allowed by law.

2) Because it is a trial de novo, some judges may require the State to go first. On the other hand, some judges will require the defendant to make his argument first.

Keep in mind the judge will have reviewed the briefs so hit the high points in your argument and be prepared to field questions from the court.

See Appendix E for Sample Brief

CHAPTER SIX – COMMON ISSUES

There are a number of common issues that arise in the context of a municipal court appeal. Some issues may be procedural, such as defects associated with the taking of a guilty plea, while others may be more substantive, such as motions to suppress evidence, motions to exclude a confession, and sentencing errors. In all cases, a careful reading of the transcript is necessary to identify those issues to raise on appeal. As counsel handling an appeal, you must be aware of the standard of proof associated with various aspects of the municipal court trial. Proof beyond a reasonable doubt does not apply across the board to every decision made by a municipal court judge.

. Standards of Proof

a. Probable Cause

Probable cause must be established for issuance of a complaint. There must be sufficient facts established to demonstrate that a violation of a state statute or municipal ordinance occurred and that the defendant committed it. This standard is generally applied to the initial issuance of process, the complaint, and the issuance of a search warrant. Probable cause has been defined in case law as follows:

[M]ore than mere naked suspicion but less than legal evidence necessary to convict. It is not a technical concept but rather one having to do with “the factual and practical considerations of every day life” upon which reasonable men, not constitutional lawyers, act. It has been described by this Court as a “well grounded suspicion” that a crime has been or is being committed. [State v. Waltz, 61 N.J. 83, 87 (1972); citations omitted].

b. Reasonable and Articulable Suspicion

This standard of proof must be met by the State to justify an investigative detention and frisk for weapons, to effect a motor vehicle stop, and to seek consent to perform a non-custodial warrantless search. The reasonableness of an officer's suspicion is judged from the standpoint of a reasonably prudent officer. Due weight must be given to the reasonable inferences an officer is entitled to draw from the facts the officer encounters in light of his experiences. State v. Lund, 119 N.J. 35, 45 (1990). The standard is not satisfied by a law enforcement officer relying on an un-particularized suspicion or hunch. This standard of proof is often seen in DWI cases where the State must justify the underlying motor vehicle stop. The facts in the record should be applied to the question: was there a reasonable and articulable suspicion that the defendant's operation of a motor vehicle violated some part of the motor vehicle code?

. Preponderance of the Evidence

The standard of proof known as “preponderance of the evidence” is applicable in a number of municipal court proceedings, such as motions to suppress evidence, penalty enforcement actions, and parking ticket cases. It is the level of proof usually needed in civil cases. To prevail, the State must prove the allegations are more likely true than not true.

. Clear and Convincing Evidence

The clear and convincing evidence standard is defined as that amount of admissible evidence that produces in the mind of the judge a firm belief or conviction as to the truth of facts that the municipal prosecutor is trying to prove. It has further been defined as evidence that is so clear, direct, and convincing so as to enable the judge to come to a clear conviction without hesitancy of the precise facts in issue. In Re Seaman, 133 N.J. 67, 74 (1993). The municipal prosecutor must meet this standard of proof to establish foundational requirements for the admissibility of an Alcotest, or the former Breathalyzer, test result. It also applies to the State in certain motions to suppress evidence where the issue involves consent to search, inevitable discovery of evidence, or the independent source rule.

e. Proof Beyond a Reasonable Doubt

The prosecutor must satisfy this standard of proof in order to secure a conviction in criminal and quasi-criminal proceedings, traffic offenses, and municipal ordinance violations. This standard is also applied to the State when the prosecutor seeks to establish the voluntariness of a confession or when attempting to disprove an affirmative defense. The New Jersey Supreme Court defined this standard in State v. Medina, 147 N.J. 43, 61 (1996), cert. denied, 520 U.S. 1190 (1997) in a jury trial, but the definition applies to a judge acting as a fact finder as well:

A reasonable doubt is an honest and reasonable uncertainty in your mind about the guilt of the defendant after you have given full and impartial consideration to all of the evidence. A reasonable doubt may arise from the evidence itself or from a lack of evidence. It is a doubt that a reasonable person hearing the same evidence would have.

Proof beyond a reasonable doubt is proof, for example, that leaves you firmly convinced of the defendant's guilt. In this world, we know very few things with absolute certainty. In criminal cases the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find

him guilty. If, on the other hand, you are not firmly convinced of defendant’s guilt, you must give defendant the benefit of the doubt and find him not guilty.

f. Conclusion

You must examine the record carefully to determine the issues to raise on appeal and argue the standard of proof that applies.

. Legal Error

No trial is perfect. Because municipal appeals are tried de novo on the record before the Superior Court judge, it is not necessary to rely on only those errors that were subject to an objection by the defendant or defense counsel. In theory, all errors are automatically preserved in a de novo hearing. However, many, if not most, errors are harmless. The better practice is to focus the appeal on those errors that had the capacity to cause an unjust result. See generally, R. 2:10-2.

. The Guilty Plea

The procedural requirements of a legally sufficient guilty plea sometimes form the basis of an issue on appeal. R. 7:6-2(a)(1). A municipal court judge must be satisfied that every guilty plea is entered voluntarily with an intelligent understanding not only for the charge or charges but also the consequences of the plea; namely, what are the penalties that will be faced as a result of pleading guilty? If a plea is entered by a self-represented defendant, the judge must be sure there is an intelligent waiver of counsel. Every plea must be supported by a factual basis.

A defendant must make a knowing and intelligent plea. To ensure this is the case, a municipal court judge must make sure that the defendant understands the charge and the consequences of pleading guilty. The defendant should be advised of the range of penalties, and in the case of a traffic matter, that notice of the guilty plea will be sent to the New Jersey Motor Vehicle Commission and become part of the defendant's New Jersey driving record. Defendants licensed in another state should be advised that their home state will be notified of the violation.

The transcript should reflect that the municipal court judge spoke to the defendant directly explaining the consequences of a guilty plea. The transcript should also contain an acknowledgement by the defendant that he or she understands the charge, the consequences of the guilty plea, and that the plea is entered freely and voluntarily, not as a result of threats or coercion, or the payment of any consideration.

For a defendant who was not represented by counsel at the municipal court level, the record should contain a knowing and voluntary waiver of the right to counsel and

court-appointed counsel for those cases that subject a defendant to a consequence of magnitude. A consequence of magnitude is any charge that exposes a defendant to a jail sentence, suspension of driver’s license, or suspension of a defendant's right to apply for a driver's license, or fines and other penalties that will exceed $750.00. There should be a colloquy between a defendant and the municipal court judge about the risks of representing oneself while not being familiar with the Rules of Court, the Rules of Evidence, all potential defenses, and the way to effectively cross-examine witnesses. Failure to knowingly waive one's right to counsel may be an issue to raise on appeal.

Lastly, all guilty pleas must be supported by a factual basis, an admission from the defendant that he or she committed all the elements of the offense charged. The factual basis must come from the defendant directly, not just representations from defense counsel. This requirement applies to every guilty plea involving criminal, traffic, and ordinance violations. This ensures that the defendant is in fact guilty of the offense and subject to the sentence. State v. Pineiro, 385 N.J. Super. 129 (App. Div. 2006).

4. Conditional Guilty Plea

Some transcripts may contain a conditional guilty plea. This is authorized by R. 7:6-2(c). A conditional guilty plea allows a defendant to plead guilty while reserving the right to appeal from certain pre-trial motions. It must be done with the consent of the prosecutor and approval of the court. For instance, a judge may rule against a defendant on a motion to suppress evidence or a motion that there was no reasonable and articulable basis for a motor vehicle stop or a motion to exclude a confession. After such a ruling goes against a defendant, there may be no other defenses to the charge. Therefore, the Rules of Court allow a defendant to enter a conditional guilty plea so as not to waste time on a trial, while preserving a defendant's right to appeal the adverse ruling on the motion.

5. Motions to Suppress Evidence

Many municipal court cases are decided on motions to suppress evidence. The motions may be filed in a variety of contexts, such as:

● Lack of a reasonable and articulable suspicion that defendant committed a violation of the motor vehicle code or other law justifying the police stop of the defendant. The motion is made to suppress all evidence collected after the stop.

● Lack of probable cause to believe that a defendant is under the influence of an alcoholic beverage, even if there was a valid stop, justifying the arrest of the defendant. The motion is often made to suppress evidence collected as a result of the arrest in an effort to suppress the Alcotest results, which are obtained as a “fruit” of the arrest.

● A warrantless search of a defendant's person during a street encounter by law enforcement.

● A warrantless search of defendant’s automobile after a roadside stop to enforce the motor vehicle laws, See, State v. Pena-Flores, 198 N.J. 6 (2009).

● A search of a residence conducted after defendant, or someone else, gave consent to law enforcement to enter the residence.

Municipal court jurisdiction extends only to motions to suppress evidence seized as a result of a warrantless search. Motions to suppress evidence seized pursuant to a search warrant are heard in the Superior Court, R. 7:5-2. The right of an accused to be free of unreasonable searches and seizures is found in the Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution. In many instances, New Jersey case law has recognized Article I, Paragraph 7 grants persons greater rights than the Fourth Amendment. In all motions to suppress evidence, the State bears the burden of proving that a warrantless seizure of evidence falls within one of the recognized exceptions to the warrant requirement. See, State v. Hill, 115 N.J. 169 (1989).

6. Alcotest Results

Lack of clear and convincing evidence to support pre-conditions for admitting into evidence Alcotest results. See, State v. Chun, 194 N.J. 54 (2008). For example, a defendant must be observed for 20 minutes before submitting to the test to ensure that he/she has not regurgitated or put substances in his/her mouth that would contaminate the results. Id. at 79. Alcotest results have been excluded on appeal, and a conviction vacated, because the State failed to prove that the defendant was observed for the requisite 20 minutes. See, State v. Filson, 409 N.J. Super. 246 (Law Div. 2009).

7. Defendant is Not Guilty

Sometimes the only issue on appeal is whether the evidence presented supports a verdict of guilty beyond a reasonable doubt. You may find that no legal error was committed below. Your client may simply insist that he did not commit the offense alleged. The municipal appeal allows a trial de novo on the record before a new fact finder.

Two fact finders reviewing the same record may reach different conclusions. You may argue the evidence below simply should not firmly convince the Law Division judge of the defendant’s guilt. You may wish to remind the Law Division judge that he or she need not find legal error in the municipal court’s verdict. A different fact finder is empowered to reach a different verdict. The municipal appeal is not like an appeal of a Law Division verdict to the Appellate Division, where the appellate court is required to defer to the fact findings below.

The only deference required in the municipal appeal pertains to credibility findings. The Law Division judge is required to give “due, although not necessarily controlling, regard to the opportunity of the magistrate to judge the credibility of the witnesses.” State v. Johnson, 42 N.J. 146, 157 (1964). Also, the municipal court, because of the volume of its caseload, is not required “to articulate detailed, subjective analyses of factors such as demeanor and appearance to support credibility determinations on each and every witness presented….” State v. Locurto, 157 N.J. 463, 475 (1999). However, in some cases, credibility determinations turn not on demeanor, which the municipal court judge is uniquely able to assess, but on such issues as consistency of testimony, motive, and bias, which the Law Division judge is equally able to consider. Moreover, no deference need be accorded unsupported conclusions based on speculation by the municipal court. State v. Segars, 172 N.J. 481, 498 (2002) (“Certainly, no deference was to be accorded the wholly unsupported conclusions the municipal court reached by speculating about what prompted the officer's inaccurate testimony.”)

If the appeal rests on the argument that the State failed to prove the defendant guilty beyond a reasonable doubt, then defense counsel should carefully analyze the record evidence. Counsel may wish to examine closely the elements of the charged offense. Perhaps counsel may wish to focus, in particular, on one of the essential elements of the offense that the State failed to prove. For example, in a harassment case, the defendant’s communications may be indisputable, but the defendant’s “purpose to harass” – an essential element – may be debatable. See, N.J.S.A. 2C:33-4. In some respects, your brief and oral argument would be akin to a summation at the end of a trial.

8. Miscellaneous

There are other common issues that arise during a municipal court trial that may form the basis of an appeal.

a. Speedy Trial

There are four factors that a court weighs in analyzing whether the prosecution of a case in municipal court denies a defendant the right to a speedy trial. The four factors are: 1.) length of delay, 2.) reason for the delay, 3.) assertion of one's right to a speedy trial; and 4.) prejudice to the defendant. Courts must balance these factors. No single factor is controlling on a speedy trial motion. See, Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L Ed. 2d 101 (1972); State v. Gallegan, 117 N.J. 345 (1989), and State v. Tsetsekas, 411 N.J. Super. 1 (App. Div. 2009).

b. Miranda

Miranda warnings must be given before a suspect's statement made while in custody may be admitted into evidence. Motions to exclude statements and

confessions are often made in municipal court. The issue may revolve around the fact of custody. When is a person considered “in custody”? See, e.g., State v. Stott, 171 N.J. 343 (2002). If there is an adverse ruling on a Miranda motion raised in municipal court, that issue may be a ground for appeal.

c. Discovery

Discovery issues are raised many times in municipal court. There may be pre-trial motions to compel the production of certain documents, photographs, videotapes, and other evidence. The record should be examined carefully to determine if denial of discovery had an adverse impact on the municipal court proceedings.

d. Sentence

There may be situations where the only issue to be raised in an appeal is the sentence imposed by the municipal court judge. The basis for such an appeal may be that the sentence imposed by the municipal court judge was illegal, beyond that permitted by statue, or that the judge abused his or her discretion and imposed an excessive sentence. Alternatively, the appeal may simply seek a de novo sentencing before another judge, without an assertion of illegality, or abuse of discretion.

Note: Ineffective assistance of counsel is not generally the subject of an appeal to the Law Division since that argument usually relies on things that are outside of the trial record. Ineffective assistance of counsel may be raised in a post-conviction relief application to the municipal court that heard the matter. See, R.7:10-2.

CHAPTER SEVEN – SENTENCING

1. Introduction

When a Superior Court judge finds a defendant guilty of an offense as part of a municipal appeal, the judge is required to impose sentence. Typically, the judge will impose sentence immediately, usually after affording both the defendant and his attorney the opportunity to speak in mitigation of punishment.

The sentence imposed on any offense by the Superior Court on appeal may not exceed the sanctions that were imposed in municipal court. This restriction is based upon a judicial policy set by the Supreme Court in the landmark decision of State v. De Bonis, 58 N.J. 182, 188-189 (1971). However, when the sentence imposed in the municipal court was illegal, the Superior Court judge may correct it, even if it results in an increased penalty. This practice is justified under the theory that where the sentence imposed in the first instance was illegal, a defendant has no basis to argue that imposition of a harsher sentence on appeal is prohibited. State v. McCourt, 131 N.J.Super. 283, 287-88 (App.Div.1974).

In any traffic matter, you should review your client’s driver’s abstract before sentencing. This is important to determine if your client is a first or repeat offender or if the accumulation of points (see below) will affect his/her driving privileges. The New Jersey Motor Vehicle Commission website has a brochure on how to read a driver’s abstract. It can be found at: http://www.state.nj.us/mvc/Licenses/DriverHistory.htm.

With these basic concepts in mind, the following sections will detail the range of sentence that may be imposed in the Superior Court following a municipal appeal.

2. Sentencing in Traffic Cases – In General

The statutory authority to impose fines for moving motor vehicle violations in Chapter 4 of Title 39 usually stems from one of two independent sources. First, the language of the statute that was violated may contain its own fine provision. If the statute does not specifically provide the penalty to be assessed for a violation, then the fine is usually assessed under N.J.S.A. 39:4-203, the general sentencing statute of the Motor Vehicle Code, applicable to most moving violations in Chapter 4.

Chapter 3 of Title 39 also has a general penalty provision set forth under N.J.S.A. 39:3-86. The statute can be utilized in those instances where no specific fine has been set forth in the statute.

3. Court Costs and Assessments

Court costs of up to $33 may be imposed on every traffic ticket where a conviction has been entered. N.J.S.A. 22A:3-4. In addition, a $6 assessment must be added to every fine or penalty imposed for a Title 39 violation. See generally N.J.S.A. 39:5-41.

4. Suspension of Driving Privileges

Normally, the suspension or revocation of a defendant's driver's license is imposed for a motor vehicle violation because the violated statute mandates it. For example, driving while intoxicated, driving on the revoked list, leaving the scene of a motor vehicle accident, and driving without liability insurance are all offenses that require the court to suspend a defendant's license upon conviction. Some offenses, such as driving on the revoked list, allow the judge discretion in setting the suspension period. Others specifically provide the time period of defendant's license loss.

On occasion, a motor vehicle statute may provide authority for the judge to suspend the defendant’s driving privileges as a matter of discretion or because the driving conduct was particularly dangerous. (For example, see N.J.S.A. 39:5-31, allowing for the suspension of driving privileges for a willful violation of any provision of Subtitle 1 of Title 39.) When a judge chooses to order a discretionary suspension, the case law requires the judge to weigh and evaluate a number of aggravating and mitigating factors. See, State v. Moran, 202 N.J. 311(2010).

5. Imprisonment

Short jail sentences are an option that may be imposed following a municipal appeal. The jail term may either be required as part of the statutory sentence or may be imposed as a matter of discretion by the judge. Unless otherwise required by law, discretionary jail sentences imposed for traffic offenses are extremely rare in the absence of evidence of extremely dangerous driving. If a jail term is imposed as a result of a conviction of a number of traffic offenses arising from a single incident, the total sentence may not exceed 180 days. State v. Federico, 414 N.J. Super. 321 (App. Div. 2010).

Finally, some counties maintain a labor assistance program that can be utilized as a substitute for a jail term. The sentencing judge may also authorize the jail term to be served on a periodic basis. See, N.J.S.A. 2B:12-22.

6. Probation

Probation is an option in any motor vehicle case where the mandatory penalty is not fixed by statute. N.J.S.A. 39:5-7. The term of probation must not be less than six months nor more than one year. A defendant who is sentenced to probation may be subject to the same conditions as a person placed on probation for a criminal offense. N.J.S.A. 2C:45-1. Therefore, a judge may, as conditions of defendant's probation, require the defendant to support his family, find or continue employment, undergo medical or psychological treatment, pursue vocational training, refrain from consorting with disreputable people, remain in the jurisdiction, or perform community service.

Where a defendant has been sentenced to pay restitution, that payment shall be a condition of probation. N.J.S.A. 2C:45-1(c). By utilizing this option, a defendant

convicted following a municipal appeal may be required to pay for any personal injury or property damage occurring in a routine traffic accident through the court as a condition of probation rather than through civil litigation.

7. Civil Reservation

Often in motor vehicle cases, a plea or finding of guilt may affect a subsequent civil case involving personal injury or property damages. This is especially true where a traffic accident is involved. The Rules of Court provide a mechanism for people to resolve their municipal court cases without necessarily exposing them to liability in any later civil suit. Rule 7:6-2(a)(1) allows a defendant to plead guilty with a reservation that the guilty plea will be non-evidential in any civil proceeding. This offers a defendant in municipal court a way to avoid a trial and settle his motor vehicle case in an expeditious manner without any danger to his position in a related civil matter.

In order to plead guilty with a civil reservation, the defendant must request the court to order the non-evidential effect of the plea. The Rule does not specify whether such an order is mandatory or discretionary once the defendant has made the request. The use of the word “may” implies that the order is left to the discretion of the judge. However, one court has held differently, stating that a “non-evidential order should … be entered as a matter of course on the request of a defendant, unless the State or a victim… shows good cause to the court why the order should not be entered.” State v. LaResca, 267 N.J. Super. 411 (App. Div. 1993).

8. Motor Vehicle Points

The Motor Vehicle Commission has imposed a point system for various motor vehicle violations. Information may be found at the State of New Jersey Motor Vehicle Commission web address: http://www.state.nj.us/mvc/Violations/penalties.htm

CRIMINAL SENTENCING

1. Introduction

The Superior Court hears many appeals each year dealing with disorderly and petty disorderly persons offenses. The sentences authorized by the Legislature for these violations are set forth in N.J.S.A. 2C:43-1 et seq. Sentencing for disorderly and petty disorderly persons offenses is controlled exclusively by the Code of Criminal Justice, Title 2C.

The normal range of punishment for a disorderly persons offense allows the court to impose a jail sentence of up to six months or a fine of up to $1,000, or both. A petty disorderly persons offense carries a jail sentence of up to 30 days or fine of up to $500, or both. There are also mandatory associated assessments for both types of offenses, including the $50 Victims of Crime Compensation Organization (VCCO) assessment

and the $75 Safe Neighborhood Services Fund assessment. Court costs of up to $33 may also be added.

Thus, the Code authorizes a range of sanctions for disorderly and petty disorderly offenses. It also offers guidance as to how and under what circumstances those sanctions are to be imposed. It explains how a judge is required to exercise the discretion provided to him by the Legislature when determining the appropriate sentence for a disorderly or petty disorderly persons offense.

In addition, there are numerous other possible sentencing alternatives authorized by the Code for disorderly or petty disorderly persons offenses. These include, among other things, probation, restitution, suspended sentences, loss of driving privileges, and credit for time served before the imposition of sentence. These issues are every bit as applicable to sentencing for disorderly and petty disorderly persons offenses in a municipal appeal as they are for sentencing in the upper courts of New Jersey. This chapter will outline some of the sentencing options available following a municipal appeal in determining the appropriate sentence to be imposed in a disorderly or petty disorderly persons offense.

2. Suspended Sentence

Pursuant to N.J.S.A. 2C:43-2(b), the court can suspend the imposition of a sentence on a defendant. This means that a judge has the right to suspend part of a sentence and still impose the balance of the sentence on the defendant or the judge may suspend the entire sentence. A judge, however, may not impose a term of imprisonment for a specific number of years, and then suspend that sentence. See, State v. Cullen, 351 N.J. Super. 505, 507-08 (App. Div. 2002), Cannel, New Jersey Criminal Code Annotated, comments on N.J.S.A. 2C:43-2. In either situation, the judge has the discretion to suspend a defendant's sentence provided that the defendant meets or follows certain conditions authorized by N.J.S.A. 2C:45-1.

N.J.S.A. 2C:43-2(b) also gives a judge the authority to suspend fines. It does not allow a judge to suspend mandatory assessments such as the VCCO and Safe Neighborhood Fund. By law, these assessments cannot be suspended. It is doubtful, therefore, that a judge may suspend any portion of a defendant's sentence which is otherwise mandatory. For example, N.J.S.A. 2C:20-11(c)(4) mandates a defendant to serve at least 90 days in jail for a third offense of shoplifting. A judge hearing a municipal appeal would not be able to legally suspend the mandatory jail sentence.

3. Probation

Following a municipal appeal, the sentencing judge has the authority to place one or more of several conditions upon a defendant whose sentence has been suspended or who has been sentenced to probation. The Code of Criminal Justice offers 12 specific conditions that may be imposed, plus a “catch-all” provision which allows the court to

impose any other condition that is reasonably related to a defendant's rehabilitation, but not unduly restrictive. N.J.S.A. 2C:45-1(b)(1) to (11) and (13).

4. Fines

The court is authorized to impose a fine on a person convicted of an offense. Absent any extraordinary circumstances, a defendant may be sentenced to up to a $1,000 fine for a disorderly persons offense and up to a $500 fine for a petty disorderly persons offense. A judge may use his or her discretion in sentencing a defendant to any amount up to the statutory limit, subject to N.J.S.A. 2C:44-1(a) and 44-2 (c)(1). On appeal, a defendant who claims an inability to pay a fine imposed by the municipal court should be prepared to present evidence of his financial situation at sentencing in the Law Division.

5. Restitution

A court may also order a defendant to make restitution to the victim instead of, or in addition to, the imposition of a fine. Corporate defendants may also be required to make restitution to a victim. However, when the victim is any department or division of the New Jersey government, the sentencing court is required to order the defendant to make restitution to the victim. N.J.S.A. 2C:43-3. The amount of restitution is set at the discretion of the court, subject to N.J.S.A. 2C:44-2(c)(2). Unless otherwise stipulated, the amount should be determined following a hearing where the judge will balance the loss to the victim against the defendant’s ability to pay. State in Interest of R.V., 280 N.J. Super. 118 (App. Div. 1995). The total restitution must not exceed the amount of the victim's loss, except that a failure to pay a State tax allows the State to receive the amount evaded, plus any civil penalties and interest.

6. Imprisonment

Following a municipal appeal, the Superior Court has the authority to impose a jail sentence on a person convicted of a disorderly or petty disorderly persons offense. A defendant may be sentenced up to six months in jail for a disorderly persons offense and up to 30 days in jail for a petty disorderly persons offense. There is no presumptive term for a disorderly or petty disorderly persons offense. There is also no authority for a judge to require that the defendant serve a portion of his sentence with a minimum term of parole ineligibility. When sentenced to jail, a defendant may also be sentenced to pay a fine and make restitution as well.

When sentencing any criminal defendant, a court must follow certain steps. First, the court must determine if imprisonment is appropriate based on certain factors set forth in the Code of Criminal Justice. Second, if the presumption of non-incarceration does not apply or is overcome, the court must determine the appropriate length of the sentence, based on the aggravating and mitigating factors set forth in N.J.S.A. 2C:44-1(a) and (b). In analyzing the aggravating factors, the sentencing court must disregard those factors which are also elements of the offense. This so-called “double counting” of elements

has been banned by the Supreme Court. State v. Yarbough, 100 N.J. 627 (1985). For example, harm to the victim of a simple assault could not be considered as an aggravating factor since injury is an element of the offense of simple assault.

Disorderly and petty disorderly persons offenders who are first offenders are afforded a presumption of non-incarceration. N.J.S.A. 2C:44-1(e). This presumption can only be overcome if the sentencing court finds that because of aggravating factors, incarceration is necessary for the protection of the public. If the presumption of non-incarceration does not apply to the defendant, then no presumption exists at all. The presumption of incarceration never applies to disorderly or petty disorderly persons offenses.

If the presumption of non-incarceration does not apply or is overcome and the sentencing court decides that a term of incarceration is necessary, it must use the balance of aggravating and mitigating factors in determining the appropriate sentence. Since there are no presumptive terms for disorderly and petty disorderly persons offenses, the aggravating and mitigating factors are the only things a court has available on which to base a jail sentence.

Finally, following a municipal appeal, judges in the Superior Court may impose a so-called “split sentence.” A split sentence involves a probationary term, coupled with a period of incarceration that can be as long as 90 days. N.J.S.A. 2C:43-2(b)(2). See, State v. Hartye, 105 N.J. 411, 418-19, (1987). The fact that a defendant has a presumption of non-incarceration does not apply to this type of sentence.

Both N.J.S.A. 2B:12-22 and N.J.S.A. 2C:43-2(b)(7) allow a defendant to serve his custodial sentence at night or on the weekends, so that he may continue to work or participate in training or educational programs. These statutes are especially important for municipal appeals because, although the jail terms tend to be relatively short, a defendant who serves his sentence continuously could conceivably lose his job and be unable to support his family. Sentencing judges thus have the option of sentencing offenders to jail at nights, on weekends, or any other time that would allow the defendant to continue his employment and support her/himself and her/his family. Serving a jail term this way also allows the defendant to continue generating income so that he can pay his fines, restitution, costs, and assessments as well.

DRUNK DRIVING SENTENCING

A. First Offense – Direct Consequences

1. Monetary sanctions

A DUI defendant who has been found guilty following a municipal appeal will be subject to a variety of monetary sanctions. These include the following:

Monetary Sanction	Required Amount	Statute
Fine	$250–$400	N.J.S.A. 39:4-50(a)(1)(i)
Fine	$300–500	N.J.S.A. 39:4-50(a)(1)(ii)
Fine 2nd Offense	$500 – $1000
Fine 3rd Offense	$1000
VCCO	$50	N.J.S.A. 2C:43-3.1
SNF	$75	N.J.S.A. 2C:43-3.2
DUI Enforcement	$100	N.J.S.A. 39:4-50.8
DUI Surcharge	$100	N.J.S.A. 39:4-50(i)
Court Costs	$33	N.J.S.A. 22A:3-4
Additional fine assessments	$6	N.J.S.A. 39:5-41