Search and Seizure Law without a Search Warrant and Suppression Motions
By Kenneth Vercammen, Past Chair of NJ State Bar Municipal Court and DWI Section.
There are a number of viable defenses and arguments which can be pursued to achieve a successful result for someone charged with Possession of Drugs or other criminal charges. Our office represents people charged with criminal and disorderly persons offenses. We provide representation throughout New Jersey. Criminal charges can cost you. If convicted, you can face prison, fines over $10,000, jail, Probation over 18 months and other penalties. Don't give up! Our Law Office can provide experienced attorney representation for criminal violations. Our web site www.njlaws.com provides information on criminal offenses we can be retained to represent people. The following is a portion of a suppression brief we wrote in successfully winning a drug possession case:
POINT 1
THE WARRANTLESS SEARCH WAS IN VIOLATION OF DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS. The Fourth Amendment to the United States Constitution provides:
The right of the people to be secure in their persons, houses, papers, effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The New Jersey Constitution (1947, Article 1, Paragraph 7) prohibits any unreasonable searches and seizures and guarantees to the people the same rights as the Federal Constitution. When evidence is seized or even a car is stopped without a warrant or violation, the burden of proof is upon the state to prove that there was no Fourth Amendment violation. State v. Brown, 132 N.J. Super. (App. Div. 1975). The state must prove that there was no Fourth Amendment violation by a preponderance of the evidence. State v. Whittington, 142 N.J. Super. 45 (App. Div. 1976). Such searches are presumptively invalid and the State carries the burden of proof of legality. State v Valencia 93 NJ 126, 133 (1983), State v. Brown, supra.; State v. Welsh, 84 N.J. 348, (1980). In the absence of a valid exception to the requirement for a search warrant, a search conducted without a warrant is per se unreasonable. Schnekloth v. Bustamonte, 412 U.S. 218,219, 93 S. Ct. 2041, 36 L. Ed 2d 854, 858 (1973) Enforcement of the federally created rights has been effected by rendering the fruits of unconstitutional searches inadmissible in associated criminal court proceedings, Weeks v United States 232 US 383, 34 S. Ct. 341, 58 L. Ed 652 (1914). These restrictions are applicable to the states, Mapp v Ohio, 367 US 643, 81 S. Ct. 1684, 6 L. Ed 2d 1081 (1961). State judges, no less than federal judges, have the high responsibility for protecting constitutional rights. While they are disturbed to allow defendants to go unprosecuted, their oath of office requires them to continue the guarantees afforded by the Constitution. As explained in Weeks, supra,:
The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land. Weeks v United States 232 US 383,393, 34 S. Ct. 341, 58 L. Ed 652 (1914). Independently of federally mandated rights, each state has the power to impose higher standards on searches and seizures under dictate law than is required by the federal constitution, PruneYard Shopping Center v Robins 447 US 74, 81 (1980); State v Johnson 68 NJ 349, 353 (1975). In fact, New Jersey has chosen to afford to the accused in the search and seizure area greater rights than those deemed mandated by the United States Constitution. State v Alston, 88 NJ 21 (1981); State v Novembrino 220 NJ Super. 229, 240-243 (App. Div. 1985), aff'd 105 NJ 95 (1987) Courts are to afford liberal, not grudging enforcement of the Fourth Amendment. We do not have one law of search and seizure for narcotics and gambling cases and another for breaking and entering and theft. The meanness of the offender or the gravity of his crime does not decrease, but rather accentuates the duty of the courts to uphold and dispassionately apply the settled judicial criteria for lawful searches under the Amendment. For it is the hard case which sometimes proves the Achilles' heal of constitutional rights, even as it tends to make bad law in other areas. State v Naturile 83 NJ Super. 563, 579 (App. Div. 1964).
POINT 2 POLICE CANNOT STOP AND SEARCH ANY CARS WITHOUT PROBABLE CAUSE The United States Supreme Court has declared that random stops for license and registration checks violate the Fourth Amendment prohibition against unreasonable searches. Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed. 2d 660, 674 (1979); State v. Patino, 83 N.J. 1 (1980). There was no indication that motor vehicle laws were violated or that any other laws were violated. Therefore, the police officers violated the constitutional rights of defendant by ordering him to exit the vehicle so the police on the scene could conduct warrantless searches. State v. Patino, 163 N.J. Super. 116, 125 (App. Div. 1970) aff'd 83 N.J. 1 (1980) prohibited a stop where the court found "in sum, the search was purely investigatory and the seizure a product of luck and hunch, a combination of insufficient constitutional ingredients." Automobiles are areas of privacy protected by the Fourth Amendment of the United States Constitution. State v. Patino, supra.; State v. Williams, 163 N.J. Super. 352, 356 (App. Div. 1979). New Jersey Courts have held that Article 1, Paragraph 7 of the New Jersey Constitution affords greater protection than the Fourth Amendment. State v. Davis, 104 N.J. 490 (1986), State v. Kirk, 202 N.J. Super. 28, 35 (App. Div. 1985). The burden is on the State to prove an exception to the warrant requirement showing the need for the search. State v. Welsh, 84 N.J. at 852. Understandable, professional curiosity is not sufficient justification for an intrusion on a constitutionally protected automobile. State v. Patino, supra. In the case at bar, the search of the vehicle and seizure of evidence were unconstitutional. Therefore, the evidence obtained in that seizure must be suppressed. Recent Cases Prohibit Searches Without A Warrant Community care-taking does not permit a search of a car. State v Costa; 327 NJ Super 22 (App. Div. 1999) Although a police officer might have the authority to stop a driver and a passenger alighting from an automobile on a private parking lot to inquire as to why the driver and his passenger had been sitting in the parked vehicle, the officer's subsequent investigation elevated the encounter to a detention, which was unsupported by an articulable suspicion, thus rendering the driver's consent to search void. We reject the State's contention that the officer's stop of both men was in conformity with its community care-taking function.
Request for Credentials is a Stop State v. Egan 325 NJ Super. 402 (Law Div. 1999). Unsupported by probable cause or reasonable suspicion, a police officer's request of credentials from the driver of a parked vehicle constituted a "stop"; was more than minimally necessary to dispel the officer's naked suspicion; and not justifiable as a "field inquiry." The fruits of the stop are, therefore, suppressed.
MV Stop Not Permitted on Community Caretaking State v. Cryan 320 NJ Super. 325 (App. Div. 1999) A motor vehicle stop may not be based on community caretaking grounds where the officer stopped the defendant because, at 4 a.m., the defendant did not proceed for five seconds after a traffic light turned green. Legally parked car no grounds for search State in the Interest of A.P. 315 NJ Super. 166 (Law Div. 1998)
Here, where the juvenile was a passenger in a legally parked car and the officer who approached him to make a community - care-taking inquiry, as opposed to a lawful stop based on a traffic violation, had no prior knowledge of the juvenile, and there was no criminal activity in the area and no signs of alcohol or a controlled dangerous substance, the juvenile's furtive movements in avoiding eye contact with the officer did not provide a basis for an objective reasonable and articulable suspicion, and the evidence seized (a lighter and a "pipe-like smoking device") must be suppressed; the issue of whether or not the juvenile's statement to the officer that he did not lean forward and down as the officer approached was a lie which would justify a suspicion that he might be armed, is subject to ambiguity and interpretation.
POINT 3 SEARCH OF THE INSIDE OF A CAR OR POSSESSIONS IS NOT PERMITTED EVEN IF A STOP IS VALID. THE FOLLOWING RECENT CASES RESTRICTED SEARCHES OF CARS.
Odor of Alcohol Insufficient to Search Car State v. Jones, 326 NJ Super. 234 (App. Div. 1999). Absent proofs that an open container of alcohol was in plain view, the odor of alcohol, combined with the admission of consumption of one bottle of beer by a motor vehicle operator, is insufficient to establish probable cause to search the vehicle for open containers where a trained police officer testifies that, based upon the circumstances and his experience, occupants often possess open containers of alcohol.
No Search of Briefcase Without Warrant Flippo v. West Virginia 528 U.S. 11, 120 S. Ct. 7, 145 L.Ed.2d 16 (1999). Where police searched a briefcase at a murder scene without getting a warrant, this violated the Fourth Amendment because there is no "crime scene exception."
Auto Exception to Search Applicable only if Exigent Circumstances State v. Santiago 319 NJ Super. 632 (App. Div. 1999) The "automobile exception" justifies a police search of an automobile without a warrant only if there are exigent circumstances that render it "impracticable" to first obtain a warrant. When police have possession of a parcel and have it turned over to defendant by a "controlled delivery," police cannot later search defendant's automobile and the parcel without a warrant, since it was not impracticable to have first obtained a search warrant, and whatever "exigency" may have existed was created by the police themselves.
Police cannot Search for Driver Identification in Minor Motor Vehicle Stop State v. Lark 163 NJ 294 (2000). Under the federal and state constitutions, following a motor vehicle stop for a minor traffic violation, a police officer may not enter the vehicle to search for proof of the driver's identity even though the driver has failed to produce his driver's license and may have lied about his identity. The officers lacked probable cause to believe a crime had been committed. The dictum in State v. Boykins, 50 N.J. 73 (1967), does not authorize the search.
Drug Bags from motel brought to Police Station Suppressed State v. Padilla 321 NJ Super. 96 (App. Div. 1999). Where bags containing the defendants' personal property were brought to police headquarters from the defendants' motel room after the defendants were arrested, the police had to give each defendant the opportunity to consent to a police inventory search or to make an alternative disposition of the property. [Source NJ Lawyer May 17, 1999]
Search not permitted for speeding ticket Knowles v. Iowa 525 U.S. 113, 119 S. Ct. 484, 142 L.Ed.2d 492, 67 U.S.L.W. 4027 (1998). (Unanimous U.S. Supreme Court decision - Justice Rehnquist). Since searches incident to traffic citations are not required either to protect an officer's safety or to discover and preserve evidence, there is no justification for an exception to the Fourth Amendment's warrant requirement. Suppression granted. Stop exceeds time limit State v. Dickey 294 N.J. 619 (1998) Applying established principles to the circumstances of this case, the combination of the detention and the degree of intrusion on Dickey's liberty exceeded permissible bounds.
POINT 4 THE OFFICER'S PAT DOWN OF DEFENDANT WAS UNREASONABLE AND IN VIOLATION OF TERRY V OHIO In determining the reasonableness of protective measures taken by an officer during a valid motor vehicle stop, the circumstances of that particular stop must be considered. State v. Lund, 119 N.J. 35, 49 (1990); State v. Lipski, 238 N.J. Super. 100, 105 (App. Div. !990). In State v Lund, supra the Supreme Court held that mere furtive gestures of an occupant in an automobile do not give rise to an articulable suspicion or suggestion of criminal activity. The court found the search improper in Lund where on the Turnpike in nearby East Brunswick a trooper saw (an alleged) motor vehicle violation. The trooper alleged he saw driver Lund turn around to his left side and reach for the back seat. The trooper testified the driver appeared nervous and kept looking toward the back seat. The driver could not produce a car registration and had a Massachusetts license. The lone trooper asked the two occupants to step out of the vehicle where he performed a Terry -type "stop and frisk". The trooper searched both occupants, then returned to the car. He saw a towel sticking out of the back seat. He felt the towel and an inside hard object. He searched the towel and found cocaine. The Court held the record did not establish a specific particularized basis for an objectively reasonable belief that the vehicle occupants were armed and dangerous. Therefore, the officer had no right to search the passenger compartment of the vehicle in Lund. In Lund, supra the officer did not claim to be in a position of actual fear, but rather was taking steps to make sure he could not be threatened. Police who do an automatic search of every person being questioned are violating these individuals' rights. Similarly, in State v Lipski, 238 N.J. Super. 100 (1990), the court invalidated a protective search based upon routine procedures with no articulable suspicion that the driver was armed or dangerous. A frisk or "protective sweep" is not permitted or justified unless there are "specific and articulable facts" and not on an "inchoate and unparticularized suspicion or hunch... that [ the officer] is dealing with an armed or dangerous person. Maryland v Buie, 110 S. Ct. 1093 (1990). In the case at bar the facts clearly indicate that even to believe the state, its evidence falls far short of the standards requiring a perceived fear of threat on the part of the police officers. No specific facts are found to articulate the officer's suspicions of a gun or other dangerous weapon. In the course of motor vehicle stops, once the occupant exits the vehicle the propriety of the officer's pat-down and frisk is to be determined by the officer's belief that the occupant presents a threat to his safety. Terry v. Ohio, 392 U.S. 1 (1968). It is apparent from the officer's own statement that he was not concerned for his safety until he came across the keys in the defendant's pocket. Indeed, it is clear that the officer began to search the defendant prior to being concerned for his safety. Therefore, the officer's belief that the defendant posed a danger was not only unreasonable, it was nonexistent according to his own report. The absence of any reasonable belief of danger prior to conducting a search makes any subsequent search constitutionally impermissible. Pennsylvania v. Mimms, 434 U.S. 106 (1988); Michigan v. Long, 463 U.S. 1032 (1983); Terry v. Ohio, supra. It is immaterial that the officer discovered evidence which may have supported his belief during the search. The controlling fact remains that the officer began a search of the defendant without reasonable belief that danger existed; it is at that point the defendant's constitutional rights were violated and the subsequent discovery of any evidence can never abrogate the initial constitutional violation. Accordingly, any evidence proffered as the result of the unconstitutional search must be suppressed. The Fourth Amendment to the United States Constitution requires the approval of an impartial judicial officer based on probable cause before most searches may be undertaken. State v Patino. 83 NJ 1,7 (1980). In the case at bar, there was no probable cause at all. Any reasonable judge would not have granted a search warrant based upon the officer's hunch. This was not a search incident to a lawful arrest. There was nothing in the current search that would give a prudent man or police officer a reasonable belief that he was about to he killed. Even the improper "Pat down" disclosed nothing that a reasonable person would think could kill or hurt him. The circumstances presented to the officers in the case at bar did not give rise to probable cause. There was no reason for the officers to fear for their safety and therefore this warrantless search was unjustified and all the illegally obtained evidence must be suppressed. Recent Cases Prohibit Frisks Anonymous tip not sufficient for frisk. State v Goree; 327 NJ Super. 227 (App. Div. 2000) An anonymous tip that a black man in a distinctive motor vehicle had a gun was not sufficient to justify a stop and frisk where nothing presented which in any way corroborated the anonymous.
Presence in crime area not sufficient for Terry stop. llinois v Wardlow; 528 U.S. 119, 120 S. Ct. 673, 145 L.Ed.2d 570 (2000) United States Supreme Court While an individual's presence in a "high crime area" is not enough to support a reasonable, particularized suspicion of criminal activity to justify a Terry stop, a location's characteristics, as well as unprovoked flight from police, are relevant in determining whether the circumstances are sufficiently suspicious to warrant further investigation. Source: NJ Law Journal Jan. 17, 2000.
Transit Police cannot always Search Passengers State v. Contreras, 168 NJ Super. 291 (App. Div. 1999) The NJ Transit Police violated the Fourth Amendment rights of three train passengers when they seized evidence without any particularized suspicion that the defendants had been or were about to engage in criminal wrong doing pursuant to a Transit Police policy of conducting "consensual encounters." Although the initial contact between the officers and defendants may have begun as a consensual one, based on the totality of the circumstances, it elevated to a detention prior to the moment defendants were searched. Under the facts presented, an objectively reasonable person would have felt free to leave. Although the motion judge expressed disdain for the Transit Police policy of conducting these "consent searches," the final decision to suppress the evidence was predicated upon well-articulated findings of fact and conclusions of law. The suppression decision is affirmed. Stop and Interrogation Not Permitted State in the Interest of J.G. 320 NJ Super. 21 (App. Div. 1999) A police officer may conduct a simple street investigation or field inquiry as long as (1) the individual is not denied the right to move on; (2) A field inquiry cannot be converted into a detention without an articulable suspicion of wrongdoing; (3) A traditional arrest must be supported by probable cause.
Search on Street not Permitted
State v. Smith 155 NJ 83 (1998) Because the police did not have probable cause to search defendant on the street, the seizure of evidence from his person was unlawful. That unlawful seizure, in turn, tainted the subsequent discovery of drugs in an apartment. All of the evidence so seized must be suppressed.
POINT 5
THE EVIDENCE MUST BE SUPPRESSED BECAUSE IT WAS NOT IN THE "PLAIN VIEW" OF THE POLICE OFFICERS. "Plain view" can refer to a situation in which items are exposed to public view in a public place or in an otherwise constitutionally unprotected location. State v. O'Herron, 153 N.J. Super. 570, 380 A.2d 728 (App. Div. 1977). Such a situation did not exist in the present case because automobiles are within the areas of privacy protected by the Fourth Amendment of the United States Constitution. State v. O'Herron, 153 N.J. Super. 570, 380 A.2d 728 (App. Div. 1977). A warrantless search was granted on a motion to suppress in State v. Barrett, 170 N.J. Super. 211 (Law Div. 1979). The court determined the police were not justified in conducting a search of a motor vehicle because one officer saw an empty hand reach from the front seat to the back seat. These movements, the operation of the vehicle with lights off from one point of the parking lot to the other, and the driver's lack of vehicle registration in no way sanctions the warrantless search of the vehicle. Neither policeman testified that he felt himself in any danger during the incident. Id. at 216. In the case at bar, the police were not justified in conducting a search merely because they saw a car parked. An opportunity for a "plain view" observance of objects can also occur where an officer has lawfully intruded into a constitutionally protected place where he observes the item in question; such a lawful intrusion requires consent. State v. O'Herron, supra. In State v. Jones, 195 N.J. Super. 119 (App. Div. 1984) police entered a vehicle at an accident scene and searched it. The court concluded that in the circumstances presented, the police officer had no right to be inside the motor vehicle searching for evidence of ownership or for the insurance identification card. The court held that even evidence falling into the plain view must be suppressed unless the officer is lawfully in the viewing area. The court further held "a defendant's constitutional right to privacy in his vehicle and personal effects cannot be 'subordinated to mere considerations of convenience to the police short of substantial necessities as grounded in the public safety' ". 195 N.J. Super. at 124. In State v. Murray, 151 N.J. Super. 300 (App. Div. 1977) the Appellate Division held that the police were not justified in taking out the front seat of a vehicle in order to conduct a warrantless search of a compartment behind the front seat just because a police officer saw an empty roach clip and vile of what appeared to be marijuana in plain view. In the case at bar, police were not justified in conducting a search on a "hunch" something was up. There is no evidence of criminality prior to the police ordering the occupants out of the vehicle and conducting a warrantless search.
POINT 6 THE DEFENDANT DID NOT CONSENT TO THE ILLEGAL SEARCH When the police search a person or vehicle by consent of the owner, the prosecutor must prove that the consent was freely and voluntarily given. Schnekloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041 (1973), on remand 479 F.2D 1047 (9th Cir. 1973). This means, among other things, that the prosecutor must prove by "clear and positive evidence" that the person knew that he had a right to refuse to consent to the search. State v. Johnson, 6 N.J. 349, 346 A.2d 66 (1975). The New Jersey Supreme Court has held that Article I, paragraph 7, of the New Jersey Constitution of 1947 requires that where the State seeks to justify any search on the basis of consent, then it has the burden of showing that the person knew that he had a right to refuse to consent to the search. State v. Johnson, supra. The court said that several ways by which the State could satisfy this burden were detailed by Justice Marshall in his dissenting opinion in Chnekloth v. Bustamonte, 412 U.S. at 286, 93 S. Ct. at 2077. There Justice Marshall's opinion was cited:
In contrast, there are several ways by which the subject's knowledge of his rights may be shown. The subject may affirmatively demonstrate such knowledge by his responses at the time the search took place, as in the United States v. Curiale, 414 F.2d 744 (2nd Cir. 1969). Where, as in this case, the person giving consent is someone other than the defendant, the prosecution may require him to testify under oath. Denials of knowledge may be disproved by establishing that the subject had, in the recent past, demonstrated his knowledge of his rights, for example, by refusing entry when it was requested by the police. The prior experience or training of the subject might in some cases support inference that he knew of his right to exclude the police. State v. Johnson, supra. One factor which courts have found weigh against finding of voluntariness is that consent was given and the subsequent search resulted in a seizure of contraband which the accused must have known would be discovered. See e.g. Arnold, New Jersey Practice, Criminal Practice and Procedure 682, page 136, referring to Higgins v. United States, 209 F.2d 819 (D.C. Cir. 1954). "If the State relies on consent as the basis for a search, it must demonstrate 'knowledge on the part of the person involved that he had a choice in the matter.' " State v. Binns, 222 N.J. Super. 583, 603, 537 A.2d 764 (App. Div. 1988), quoting, State v. Johnson, 68 N.J. 349, 354, 346 A.2d 66 (1975). In State v. Binns, the trooper informed the defendant of his right to refuse a search of the vehicle. The trooper also asked the defendant to sign a consent form which the defendant testified he signed with the intent to give consent to the search. These things were not done in the case at bar. In State v. Santana, 215 N.J. Super. 63, 521, A.2d 346 (App. Div. 1987), the trooper wanted to search the car, but did not think he had probable cause to either obtain a search warrant or to place the defendants under arrest. He, therefore, asked the defendant, who had been given use of the car, for consent to search, informing him that he could refuse to give such consent. Id. at 67. In State v. Pierce, 140 N.J. Super. 408, 414 (App. Div. 1983) the searching officer had Pierce fill out a written consent form to search the passenger compartment of the car. A second officer later had defendant Pierce fill out a second written consent form for the search of the trunk. At no time was consent requested from or received from the other defendant, Carroll. Even though lawfully obtained evidence was found on Carroll in the passenger compartment, the New Jersey Superior Court suppressed the evidence from the trunk which incriminated her.
The ensuing search by the police in the case at bar was unlawful because the police did not have a right to conduct a warrantless search on the basis of an event which they themselves created. State v. Welsh, 167 N.J. Super. 233, 236-237 (App. Div. 1979); State v. Williams, 168 N.J. Super. 352 (App. Div. 1979). The police report did not indicate the police were in risk of harm or even feared harm or a loss of evidence. The evidence obtained in the search in the case at bar was unlawful and therefore must be suppressed.
Friday, January 4, 2008
School Zone Distribution of Drugs 2C:35-7
The following is the New Jersey Statute on Distribution of Drugs on or within 1,000 feet of school property:
2C:35-5 1. Any person who violates subsection a. of N.J.S. 2C:35-5 by distributing, dispensing or possessing with intent to distribute a controlled dangerous substance or controlled substance analog while on any school property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of such school property or a school bus, or while on any school bus, is guilty of a crime of the third degree and shall, except as provided in N.J.S. 2C:35-12, be sentenced by the court to a term of imprisonment. Where the violation involves less than one ounce of marijuana, the term of imprisonment shall include the imposition of a minimum term which shall be fixed at, or between, one-third and one-half of the sentence imposed, or one year, whichever is greater, during which the defendant shall be ineligible for parole. In all other cases, the term of imprisonment shall include the imposition of a minimum term which shall be fixed at, or between, one-third and one-half of the sentence imposed, or three years, whichever is greater, during which the defendant shall be ineligible for parole. Notwithstanding the provisions of subsection b. of N.J.S. 2C :43-3, a fine of up to $150,000.00 may also be imposed upon any conviction for a violation of this section.
Notwithstanding the provisions of N.J.S. 2C :1-8 or any other provisions of law, a conviction arising under this section shall not merge with a conviction for a violation of subsection a. of N.J.S. 2C:35-5 (manufacturing, distributing or dispensing) or N.J.S. 2C :35-6 (employing a juvenile in a drug distribution scheme).
It shall be no defense to a prosecution for a violation of this section that the actor was unaware that the prohibited conduct took place while on or within 1,000 feet of any school property. Nor shall it be a defense to a prosecution under this section, or under any other provision of this title, that no juveniles were present on the school property at the time of the offense or that the school was not in session.
It is an affirmative defense to prosecution for a violation of this section that the prohibited conduct took place entirely within a private residence, that no person 17 years of age or younger was present in such private residence at any time during the commission of the offense, and that the prohibited conduct did not involve distributing, dispensing or possessing with the intent to distribute or dispense any controlled dangerous substance or controlled substance analog for profit. The affirmative defense established in this section shall be proved by the defendant by a preponderance of the evidence. Nothing herein shall be construed to establish an affirmative defense with respect to a prosecution for an offense defined in any other section of this chapter.
In a prosecution under this section, a map produced or reproduced by any municipal or county engineer for the purpose of depicting the location and boundaries of the area on or within 1,000 feet of any property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or a true copy of such a map, shall, upon proper authentication, be admissible and shall constitute prima facie evidence of the location and boundaries of those areas, provided that the governing body of the municipality or county has adopted a resolution or ordinance approving the map as official finding and record of the location and boundaries of the area or areas on or within 1,000 feet of the school property. Any map approved pursuant to this section may be changed from time to time by the governing body of the municipality or county. The original of every map approved or revised pursuant to this section, or a true copy thereof, shall be filed with the clerk of the municipality or county, and shall be maintained as an official record of the municipality or county. Nothing in this section shall be construed to preclude the prosecution from introducing or relying upon any other evidence or testimony to establish any element of this offense; nor shall this section be construed to preclude the use or admissibility of any map or diagram other than one which has been approved by the governing body of a municipality or county, provided that the map or diagram is otherwise admissible pursuant to the Rules of Evidence.
2C:35-7.1. Violations of N.J.S. 2C :35-5, certain locations; degree of crime; terms defined 1. a. Any person who violates subsection a. of N.J.S. 2C :35-5 by distributing, dispensing or possessing with intent to distribute a controlled dangerous substance or controlled substance analog while in, on or within 500 feet of the real property comprising a public housing facility, a public park, or a public building is guilty of a crime of the second degree, except that it is a crime of the third degree if the violation involved less than one ounce of marijuana.
b. It shall be no defense to a prosecution for violation of this section that the actor was unaware that the prohibited conduct took place while on or within 500 feet of a public housing facility, a public park, or a public building.
c. Notwithstanding the provisions of N.J.S. 2C :1-8 or any other provisions of law, a conviction arising under this section shall not merge with a conviction for a violation of subsection a. of N.J.S. 2C :35-5 (manufacturing, distributing or dispensing) or N.J.S. 2C :35-6 (employing a juvenile in a drug distribution scheme). Nothing in this section shall be construed to preclude or limit a prosecution or conviction for a violation of N.J.S. 2C :35-7 or any other offense defined in this chapter.
d. It is an affirmative defense to prosecution for a violation of this section that the prohibited conduct did not involve distributing, dispensing or possessing with the intent to distribute or dispense any controlled dangerous substance or controlled substance analog for profit, and that the prohibited conduct did not involve distribution to a person 17 years of age or younger. The affirmative defense established in this section shall be proved by the defendant by a preponderance of the evidence. Nothing herein shall be construed to establish an affirmative defense with respect to a prosecution for an offense defined in any other section of this chapter.
e. In a prosecution under this section, a map produced or reproduced by any municipal or county engineer for the purpose of depicting the location and boundaries of the area on or within 500 feet of a public housing facility which is owned by or leased to a housing authority according to the "Local Redevelopment and Housing Law," P.L. 1992, c.79 (C. 40A: 12A-1 et seq.), the area in or within 500 feet of a public park, or the area in or within 500 feet of a public building, or a true copy of such a map, shall, upon proper authentication, be admissible and shall constitute prima facie evidence of the location and boundaries of those areas, provided that the governing body of the municipality or county has adopted a resolution or ordinance approving the map as official finding and record of the location and boundaries of the area or areas on or within 500 feet of a public housing facility, a public park, or a public building. Any map approved pursuant to this section may be changed from time to time by the governing body of the municipality or county. The original of every map approved or revised pursuant to this section, or a true copy thereof, shall be filed with the clerk of the municipality or county, and shall be maintained as an official record of the municipality or county. Nothing in this section shall be construed to preclude the prosecution from introducing or relying upon any other evidence or testimony to establish any element of this offense; nor shall this section be construed to preclude the use or admissibility of any map or diagram other than one which has been approved by the governing body of a municipality or county, provided that the map or diagram is otherwise admissible pursuant to the Rules of Evidence.
f. As used in this act:
"Public housing facility" means any dwelling, complex of dwellings, accommodation, building, structure or facility and real property of any nature appurtenant thereto and used in connection therewith, which is owned by or leased to a local housing authority in accordance with the "Local Redevelopment and Housing Law," P.L. 1992, c.79 (C. 40A: 12A-1 et seq.) for the purpose of providing living accommodations to persons of low income.
"Public park" means a park, recreation facility or area or playground owned or controlled by a State, county or local government unit.
"Public building" means any publicly owned or leased library or museum.
2C:35-5 1. Any person who violates subsection a. of N.J.S. 2C:35-5 by distributing, dispensing or possessing with intent to distribute a controlled dangerous substance or controlled substance analog while on any school property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of such school property or a school bus, or while on any school bus, is guilty of a crime of the third degree and shall, except as provided in N.J.S. 2C:35-12, be sentenced by the court to a term of imprisonment. Where the violation involves less than one ounce of marijuana, the term of imprisonment shall include the imposition of a minimum term which shall be fixed at, or between, one-third and one-half of the sentence imposed, or one year, whichever is greater, during which the defendant shall be ineligible for parole. In all other cases, the term of imprisonment shall include the imposition of a minimum term which shall be fixed at, or between, one-third and one-half of the sentence imposed, or three years, whichever is greater, during which the defendant shall be ineligible for parole. Notwithstanding the provisions of subsection b. of N.J.S. 2C :43-3, a fine of up to $150,000.00 may also be imposed upon any conviction for a violation of this section.
Notwithstanding the provisions of N.J.S. 2C :1-8 or any other provisions of law, a conviction arising under this section shall not merge with a conviction for a violation of subsection a. of N.J.S. 2C:35-5 (manufacturing, distributing or dispensing) or N.J.S. 2C :35-6 (employing a juvenile in a drug distribution scheme).
It shall be no defense to a prosecution for a violation of this section that the actor was unaware that the prohibited conduct took place while on or within 1,000 feet of any school property. Nor shall it be a defense to a prosecution under this section, or under any other provision of this title, that no juveniles were present on the school property at the time of the offense or that the school was not in session.
It is an affirmative defense to prosecution for a violation of this section that the prohibited conduct took place entirely within a private residence, that no person 17 years of age or younger was present in such private residence at any time during the commission of the offense, and that the prohibited conduct did not involve distributing, dispensing or possessing with the intent to distribute or dispense any controlled dangerous substance or controlled substance analog for profit. The affirmative defense established in this section shall be proved by the defendant by a preponderance of the evidence. Nothing herein shall be construed to establish an affirmative defense with respect to a prosecution for an offense defined in any other section of this chapter.
In a prosecution under this section, a map produced or reproduced by any municipal or county engineer for the purpose of depicting the location and boundaries of the area on or within 1,000 feet of any property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or a true copy of such a map, shall, upon proper authentication, be admissible and shall constitute prima facie evidence of the location and boundaries of those areas, provided that the governing body of the municipality or county has adopted a resolution or ordinance approving the map as official finding and record of the location and boundaries of the area or areas on or within 1,000 feet of the school property. Any map approved pursuant to this section may be changed from time to time by the governing body of the municipality or county. The original of every map approved or revised pursuant to this section, or a true copy thereof, shall be filed with the clerk of the municipality or county, and shall be maintained as an official record of the municipality or county. Nothing in this section shall be construed to preclude the prosecution from introducing or relying upon any other evidence or testimony to establish any element of this offense; nor shall this section be construed to preclude the use or admissibility of any map or diagram other than one which has been approved by the governing body of a municipality or county, provided that the map or diagram is otherwise admissible pursuant to the Rules of Evidence.
2C:35-7.1. Violations of N.J.S. 2C :35-5, certain locations; degree of crime; terms defined 1. a. Any person who violates subsection a. of N.J.S. 2C :35-5 by distributing, dispensing or possessing with intent to distribute a controlled dangerous substance or controlled substance analog while in, on or within 500 feet of the real property comprising a public housing facility, a public park, or a public building is guilty of a crime of the second degree, except that it is a crime of the third degree if the violation involved less than one ounce of marijuana.
b. It shall be no defense to a prosecution for violation of this section that the actor was unaware that the prohibited conduct took place while on or within 500 feet of a public housing facility, a public park, or a public building.
c. Notwithstanding the provisions of N.J.S. 2C :1-8 or any other provisions of law, a conviction arising under this section shall not merge with a conviction for a violation of subsection a. of N.J.S. 2C :35-5 (manufacturing, distributing or dispensing) or N.J.S. 2C :35-6 (employing a juvenile in a drug distribution scheme). Nothing in this section shall be construed to preclude or limit a prosecution or conviction for a violation of N.J.S. 2C :35-7 or any other offense defined in this chapter.
d. It is an affirmative defense to prosecution for a violation of this section that the prohibited conduct did not involve distributing, dispensing or possessing with the intent to distribute or dispense any controlled dangerous substance or controlled substance analog for profit, and that the prohibited conduct did not involve distribution to a person 17 years of age or younger. The affirmative defense established in this section shall be proved by the defendant by a preponderance of the evidence. Nothing herein shall be construed to establish an affirmative defense with respect to a prosecution for an offense defined in any other section of this chapter.
e. In a prosecution under this section, a map produced or reproduced by any municipal or county engineer for the purpose of depicting the location and boundaries of the area on or within 500 feet of a public housing facility which is owned by or leased to a housing authority according to the "Local Redevelopment and Housing Law," P.L. 1992, c.79 (C. 40A: 12A-1 et seq.), the area in or within 500 feet of a public park, or the area in or within 500 feet of a public building, or a true copy of such a map, shall, upon proper authentication, be admissible and shall constitute prima facie evidence of the location and boundaries of those areas, provided that the governing body of the municipality or county has adopted a resolution or ordinance approving the map as official finding and record of the location and boundaries of the area or areas on or within 500 feet of a public housing facility, a public park, or a public building. Any map approved pursuant to this section may be changed from time to time by the governing body of the municipality or county. The original of every map approved or revised pursuant to this section, or a true copy thereof, shall be filed with the clerk of the municipality or county, and shall be maintained as an official record of the municipality or county. Nothing in this section shall be construed to preclude the prosecution from introducing or relying upon any other evidence or testimony to establish any element of this offense; nor shall this section be construed to preclude the use or admissibility of any map or diagram other than one which has been approved by the governing body of a municipality or county, provided that the map or diagram is otherwise admissible pursuant to the Rules of Evidence.
f. As used in this act:
"Public housing facility" means any dwelling, complex of dwellings, accommodation, building, structure or facility and real property of any nature appurtenant thereto and used in connection therewith, which is owned by or leased to a local housing authority in accordance with the "Local Redevelopment and Housing Law," P.L. 1992, c.79 (C. 40A: 12A-1 et seq.) for the purpose of providing living accommodations to persons of low income.
"Public park" means a park, recreation facility or area or playground owned or controlled by a State, county or local government unit.
"Public building" means any publicly owned or leased library or museum.
Schedule III Narcotic 33:1-81
Schedule III Narcotic: Defense of Indictable Drug Charges- Possession of a Schedule III Narcotic
There are a number of viable defenses and arguments which can be pursued to achieve a successful result for someone charged with possession of Narcotics (CDS). Advocacy, commitment, and persistence are essential to defending a client accused of involvement with Narcotics.
Our office represents people charged with crimes. We provide representation throughout New Jersey. Criminal charges can cost you. If convicted, you can face prison, fines over $10,000, jail, Probation over 18 months and other penalties. Don't give up! Our Law Office can provide experienced attorney representation for criminal violations. Our website www.njlaws.com provides information on criminal offenses we can be retained to represent people.
In New Jersey, there are drug laws which established Schedules of illegal drugs. New Jersey does not call serious drug offense "felonies". They are called "crimes"
GHB, Rohypnol, and Ketamine
GHB, Rohypnol, and Ketamine are the three drugs most commonly known as "date rape drugs." Each of them has been used in recent, high-profile cases to sexually assault incapacitated victims.
The fact is that any drug or alcohol can make a intended victim less able to protect him or herself, but these drugs have an added punch: Each of them can make someone unable to defend herself against attack in a very short time in some cases, it takes less than one minute!
These drugs are also sometimes taken intentionally for various "high" experiences. Although Rohypnol and Ketamine have legitimate medical uses, they are not safe to take without medical supervision. None of these drugs is something to experiment or play with. All have addictive potential and all can cause fatal overdoses quite easily.
Ketamine is a Controlled Substance, Schedule 3 drug
NJSA 24:21-7 Schedule III
7. Schedule III. Drugs
a. Tests. The commissioner shall place a substance in Schedule III if he finds that the substance: (1) has a potential for abuse less than the substances listed in Schedules I and II; (2) has currently accepted medical use in treatment in the United States; and (3) abuse may lead to moderate or low physical dependence or high psychological dependence.
b. The controlled dangerous substances listed in this section are included in Schedule III, subject to any revision and republishing by the commissioner pursuant to section 3d., and except to the extent provided in any other schedule.
c. Any material, compound, mixture, or preparation which contains any quantity of the following substances associated with a stimulant effect on the central nervous system:
(1) Amphetamine, its salts, optical isomers, and salts of its optical isomers.
(2) Phenmetrazine and its salts.
(3) Any substance which contains any quantity of methamphetamine, including its salts, isomers, and salts of isomers.
(4) Methylphenidate.
d. Any material, compound, mixture, or preparation which contains any quantity of the following substances having a potential for abuse associated with a depressant effect on the central nervous system:
(1) Any substance which contains any quantity of a derivative of barbituric acid, or any salt of a derivative of barbituric acid, except those substances which are specifically listed in other schedules
(2) Chlorhexadol
(3) Glutethimide
(4) Lysergic acid
(5) Lysergic acid amide
(6) Methyprylon
(7) Phencyclidine
(8) Sulfondiethylmethane
(9) Sulfonethylmethane
(10) Sulfonmethane
(11) Ketamine hydrochloride.
e. Nalorphine.
f. Any material, compound, mixture, or preparation containing limited quantities of any of the following narcotic drugs, or any salts thereof:
(1) Not more than 1.80 grams of codeine or any of its salts per 100 milliliters or not more than 90 milligrams per dosage unit, with an equal or greater quantity of an isoquinoline alkaloid of opium.
(2) Not more than 1.80 grams of codeine or any of its salts per 100 milliliters or not more than 90 milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts.
(3) Not more than 300 milligrams of dihydrocodeinone or any of its salts per 100 milliliters or not more than 15 milligrams per dosage unit, with a four-fold or greater quantity of an isoquinoline alkaloid of opium.
(4) Not more than 300 milligrams of dihydrocodeinone or any of its salts per 100 milliliters or not more than 15 milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts.
(5) Not more than 1.80 grams of dihydrocodeine or any of its salts per 100 milliliters or not more than 90 milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts.
(6) Not more than 300 milligrams of ethylmorphine or any of its salts per 100 milliliters or not more than 15 milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts.
(7) Not more than 500 milligrams of opium or any of its salts per 100 milliliters or per 100 grams, or not more than 25 milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts.
(8) Not more than 50 milligrams of morphine or any of its salts per 100 milliliters or per 100 grams with one or more active, nonnarcotic ingredients in recognized therapeutic amounts.
g. The commissioner may by regulation except any compound, mixture, or preparation containing any stimulant or depressant substance listed in subsections a. and b. of this schedule from the application of all or any part of this act if the compound, mixture, or preparation contains one or more active medicinal ingredients not having a stimulant or depressant effect on the central nervous system; provided, that such admixtures shall be included therein in such combinations, quantity, proportion, or concentration as to vitiate the potential for abuse of the substances which do have a stimulant or depressant effect on the central nervous system.
There are a number of viable defenses and arguments which can be pursued to achieve a successful result for someone charged with possession of Narcotics (CDS). Advocacy, commitment, and persistence are essential to defending a client accused of involvement with Narcotics.
Our office represents people charged with crimes. We provide representation throughout New Jersey. Criminal charges can cost you. If convicted, you can face prison, fines over $10,000, jail, Probation over 18 months and other penalties. Don't give up! Our Law Office can provide experienced attorney representation for criminal violations. Our website www.njlaws.com provides information on criminal offenses we can be retained to represent people.
In New Jersey, there are drug laws which established Schedules of illegal drugs. New Jersey does not call serious drug offense "felonies". They are called "crimes"
GHB, Rohypnol, and Ketamine
GHB, Rohypnol, and Ketamine are the three drugs most commonly known as "date rape drugs." Each of them has been used in recent, high-profile cases to sexually assault incapacitated victims.
The fact is that any drug or alcohol can make a intended victim less able to protect him or herself, but these drugs have an added punch: Each of them can make someone unable to defend herself against attack in a very short time in some cases, it takes less than one minute!
These drugs are also sometimes taken intentionally for various "high" experiences. Although Rohypnol and Ketamine have legitimate medical uses, they are not safe to take without medical supervision. None of these drugs is something to experiment or play with. All have addictive potential and all can cause fatal overdoses quite easily.
Ketamine is a Controlled Substance, Schedule 3 drug
NJSA 24:21-7 Schedule III
7. Schedule III. Drugs
a. Tests. The commissioner shall place a substance in Schedule III if he finds that the substance: (1) has a potential for abuse less than the substances listed in Schedules I and II; (2) has currently accepted medical use in treatment in the United States; and (3) abuse may lead to moderate or low physical dependence or high psychological dependence.
b. The controlled dangerous substances listed in this section are included in Schedule III, subject to any revision and republishing by the commissioner pursuant to section 3d., and except to the extent provided in any other schedule.
c. Any material, compound, mixture, or preparation which contains any quantity of the following substances associated with a stimulant effect on the central nervous system:
(1) Amphetamine, its salts, optical isomers, and salts of its optical isomers.
(2) Phenmetrazine and its salts.
(3) Any substance which contains any quantity of methamphetamine, including its salts, isomers, and salts of isomers.
(4) Methylphenidate.
d. Any material, compound, mixture, or preparation which contains any quantity of the following substances having a potential for abuse associated with a depressant effect on the central nervous system:
(1) Any substance which contains any quantity of a derivative of barbituric acid, or any salt of a derivative of barbituric acid, except those substances which are specifically listed in other schedules
(2) Chlorhexadol
(3) Glutethimide
(4) Lysergic acid
(5) Lysergic acid amide
(6) Methyprylon
(7) Phencyclidine
(8) Sulfondiethylmethane
(9) Sulfonethylmethane
(10) Sulfonmethane
(11) Ketamine hydrochloride.
e. Nalorphine.
f. Any material, compound, mixture, or preparation containing limited quantities of any of the following narcotic drugs, or any salts thereof:
(1) Not more than 1.80 grams of codeine or any of its salts per 100 milliliters or not more than 90 milligrams per dosage unit, with an equal or greater quantity of an isoquinoline alkaloid of opium.
(2) Not more than 1.80 grams of codeine or any of its salts per 100 milliliters or not more than 90 milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts.
(3) Not more than 300 milligrams of dihydrocodeinone or any of its salts per 100 milliliters or not more than 15 milligrams per dosage unit, with a four-fold or greater quantity of an isoquinoline alkaloid of opium.
(4) Not more than 300 milligrams of dihydrocodeinone or any of its salts per 100 milliliters or not more than 15 milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts.
(5) Not more than 1.80 grams of dihydrocodeine or any of its salts per 100 milliliters or not more than 90 milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts.
(6) Not more than 300 milligrams of ethylmorphine or any of its salts per 100 milliliters or not more than 15 milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts.
(7) Not more than 500 milligrams of opium or any of its salts per 100 milliliters or per 100 grams, or not more than 25 milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts.
(8) Not more than 50 milligrams of morphine or any of its salts per 100 milliliters or per 100 grams with one or more active, nonnarcotic ingredients in recognized therapeutic amounts.
g. The commissioner may by regulation except any compound, mixture, or preparation containing any stimulant or depressant substance listed in subsections a. and b. of this schedule from the application of all or any part of this act if the compound, mixture, or preparation contains one or more active medicinal ingredients not having a stimulant or depressant effect on the central nervous system; provided, that such admixtures shall be included therein in such combinations, quantity, proportion, or concentration as to vitiate the potential for abuse of the substances which do have a stimulant or depressant effect on the central nervous system.
Riot; Failure to Disperse
Riot; failure to disperse 2C:33-1. a. Riot. A person is guilty of riot if he participates with four or more others in a course of disorderly conduct as defined in section 2C:33-2a:
(1) With purpose to commit or facilitate the commission of a crime;
(2) With purpose to prevent or coerce official action; or
(3) When he or any other participant, known to him, uses or plans to use a firearm or other deadly weapon.
Riot if committed under circumstances set forth in paragraph (3) is a crime of the third degree. Otherwise riot is a crime of the fourth degree.
b. Failure of disorderly persons to disperse upon official order. Where five or more persons are participating in a course of disorderly conduct as defined in section 2C:33-2 a. likely to cause substantial harm, a peace officer or other public servant engaged in executing or enforcing the law may order the participants and others in the immediate vicinity to disperse. A person who refuses or knowingly fails to obey such an order commits a disorderly persons offense.
L.1978, c. 95, s. 2C:33-1, eff. Sept. 1, 1979. Amended by L.1979, c. 178, s. 63, eff. Sept. 1, 1979; L.1981, c. 290, s. 35, eff. Sept. 24, 1981.
(1) With purpose to commit or facilitate the commission of a crime;
(2) With purpose to prevent or coerce official action; or
(3) When he or any other participant, known to him, uses or plans to use a firearm or other deadly weapon.
Riot if committed under circumstances set forth in paragraph (3) is a crime of the third degree. Otherwise riot is a crime of the fourth degree.
b. Failure of disorderly persons to disperse upon official order. Where five or more persons are participating in a course of disorderly conduct as defined in section 2C:33-2 a. likely to cause substantial harm, a peace officer or other public servant engaged in executing or enforcing the law may order the participants and others in the immediate vicinity to disperse. A person who refuses or knowingly fails to obey such an order commits a disorderly persons offense.
L.1978, c. 95, s. 2C:33-1, eff. Sept. 1, 1979. Amended by L.1979, c. 178, s. 63, eff. Sept. 1, 1979; L.1981, c. 290, s. 35, eff. Sept. 24, 1981.
Quasi Criminal Rights
Quasi criminal rights of persons charged with Motor vehicle offenses including DWI and Driving While Suspended
Our courts have long held that prosecutions for "a violation of [motor vehicle law] provisions results in a prosecution of a quasi-criminal action." State v. Cooper, 129 N.J. Super. 229, 231 (App. Div.), certif. denied, 66 N.J. 329 (1974); see also State v. Selzer, 57 N.J. Super. 327, 330 (Law Div. 1959) "(It has been firmly established by the decisions in this State that motor vehicle or traffic violations, unless specifically designated otherwise, are quasi-criminal in character.)"; State v. Rowe, 116 N.J.L. 48, 51 (1935)" (It is . . . the settled law that our Motor Vehicle Act is a penal statute; it is quasi criminal in nature.)" (citation omitted). Quasi-criminal offenses are a class of offenses against the public 'which have not been declared crimes, but wrongful against the general or local public which it is proper should be repressed or punished by forfeitures and penalties.' State v. Laird, 25 N.J. 298, 302-03 (1957) (quoting Wiggins v. City of Chicago, 68 Ill. 372 (1873)). Courts have characterized traffic offenses as quasi-criminal "to satisfy the requirements of fundamental fairness and essential justice to the accused." Vickey v. Nessler, 230 N.J. Super. 141, 149 (1989); see also Laird, 25 N.J. at 303 (holding that classification of crimes as quasi-criminal is "in no sense illusory . . . [as] it has reference to the safeguards inherent in the very nature of the offense, the punitive quality that characterizes the proceeding, and the requirement of fundamental fairness and essential justice)". It follows that "[a] defendant in a prosecution alleging violation of one of the quasi-criminal offenses enumerated in the Motor Vehicle Act is . . . entitled to the basic rights afforded to criminal defendants. . . ." State v. Feintuch, 150 N.J. Super. 414, 422 (App. Div. 1977) (citing State v. Emery, 27 N.J. 348, 353 (1958); Cooper, supra, 129 N.J. Super. at 231), appeal dismissed, 75 N.J. 606 (1978); see also State v. Francis, 67 N.J. Super. 377, 381 (App. Div. 1961) (holding that defendants charged with quasi-criminal offenses "are entitled to the same protection[s] as are normally accorded one accused of a criminal offense)". However, until 1983, our case law was unclear concerning whether principles of double jeopardy are applicable to motor vehicle prosecutions. State v. Dively, 92 N.J. 573, 584 (1983). Dively expressly held that "Motor Vehicle violations tried in municipal courts are within the category of offenses subject to the Double Jeopardy Clause." Id. at 586. State v. John Widmaier 157 N.J. 475. (1999)
Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey. Our office helps people with traffic/ municipal court tickets including drivers charged with driving commercial vehicle while intoxicated, refusal and on driving while suspended with a CDL.
Motor vehicle violations can cost you. You will have to pay fines in court or receive points on your drivers license. An accumulation of too many points, or certain moving violations may require you to pay expensive surcharges to the N.J. MVC [Division of Motor Vehicles] or have your license suspended. Don't give up! The Law Office of Kenneth Vercammen can provide experienced attorney representation for motor vehicle violations.
When your driver's license is in jeopardy or you are facing thousands of dollars in fines, DMV surcharges and car insurance increases, you need excellent legal representation. The least expensive attorney is not always the answer. Please call us if you need experienced legal representation in a traffic/municipal court matter. Our website www.njlaws.com provides information on traffic offenses we can be retained to represent people. Our website also provides details on jail terms for traffic violations and car insurance eligibility points. Car insurance companies increase rates or drop customers based on moving violations.
Conclusion
It is well established that the prosecution of a defendant for a motor vehicle violation is a quasi-criminal proceeding. In such a proceeding the burden of proof is upon the state to establish all elements of the offense beyond a reasonable doubt. Unfortunately, plea bargaining is not permitted in Municipal Court DWI cases (while it is available in such varied charges as murder, careless driving, or the burning of old tires). Defense counsel must subpoena its necessary witnesses and prepare for trial. Never attempt to represent yourself if you are facing serious charges.
Our courts have long held that prosecutions for "a violation of [motor vehicle law] provisions results in a prosecution of a quasi-criminal action." State v. Cooper, 129 N.J. Super. 229, 231 (App. Div.), certif. denied, 66 N.J. 329 (1974); see also State v. Selzer, 57 N.J. Super. 327, 330 (Law Div. 1959) "(It has been firmly established by the decisions in this State that motor vehicle or traffic violations, unless specifically designated otherwise, are quasi-criminal in character.)"; State v. Rowe, 116 N.J.L. 48, 51 (1935)" (It is . . . the settled law that our Motor Vehicle Act is a penal statute; it is quasi criminal in nature.)" (citation omitted). Quasi-criminal offenses are a class of offenses against the public 'which have not been declared crimes, but wrongful against the general or local public which it is proper should be repressed or punished by forfeitures and penalties.' State v. Laird, 25 N.J. 298, 302-03 (1957) (quoting Wiggins v. City of Chicago, 68 Ill. 372 (1873)). Courts have characterized traffic offenses as quasi-criminal "to satisfy the requirements of fundamental fairness and essential justice to the accused." Vickey v. Nessler, 230 N.J. Super. 141, 149 (1989); see also Laird, 25 N.J. at 303 (holding that classification of crimes as quasi-criminal is "in no sense illusory . . . [as] it has reference to the safeguards inherent in the very nature of the offense, the punitive quality that characterizes the proceeding, and the requirement of fundamental fairness and essential justice)". It follows that "[a] defendant in a prosecution alleging violation of one of the quasi-criminal offenses enumerated in the Motor Vehicle Act is . . . entitled to the basic rights afforded to criminal defendants. . . ." State v. Feintuch, 150 N.J. Super. 414, 422 (App. Div. 1977) (citing State v. Emery, 27 N.J. 348, 353 (1958); Cooper, supra, 129 N.J. Super. at 231), appeal dismissed, 75 N.J. 606 (1978); see also State v. Francis, 67 N.J. Super. 377, 381 (App. Div. 1961) (holding that defendants charged with quasi-criminal offenses "are entitled to the same protection[s] as are normally accorded one accused of a criminal offense)". However, until 1983, our case law was unclear concerning whether principles of double jeopardy are applicable to motor vehicle prosecutions. State v. Dively, 92 N.J. 573, 584 (1983). Dively expressly held that "Motor Vehicle violations tried in municipal courts are within the category of offenses subject to the Double Jeopardy Clause." Id. at 586. State v. John Widmaier 157 N.J. 475. (1999)
Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey. Our office helps people with traffic/ municipal court tickets including drivers charged with driving commercial vehicle while intoxicated, refusal and on driving while suspended with a CDL.
Motor vehicle violations can cost you. You will have to pay fines in court or receive points on your drivers license. An accumulation of too many points, or certain moving violations may require you to pay expensive surcharges to the N.J. MVC [Division of Motor Vehicles] or have your license suspended. Don't give up! The Law Office of Kenneth Vercammen can provide experienced attorney representation for motor vehicle violations.
When your driver's license is in jeopardy or you are facing thousands of dollars in fines, DMV surcharges and car insurance increases, you need excellent legal representation. The least expensive attorney is not always the answer. Please call us if you need experienced legal representation in a traffic/municipal court matter. Our website www.njlaws.com provides information on traffic offenses we can be retained to represent people. Our website also provides details on jail terms for traffic violations and car insurance eligibility points. Car insurance companies increase rates or drop customers based on moving violations.
Conclusion
It is well established that the prosecution of a defendant for a motor vehicle violation is a quasi-criminal proceeding. In such a proceeding the burden of proof is upon the state to establish all elements of the offense beyond a reasonable doubt. Unfortunately, plea bargaining is not permitted in Municipal Court DWI cases (while it is available in such varied charges as murder, careless driving, or the burning of old tires). Defense counsel must subpoena its necessary witnesses and prepare for trial. Never attempt to represent yourself if you are facing serious charges.
Property Subject to Forfeiture 2C:64-1
2C:64-1. Property Subject to Forfeiture.
a. Any interest in the following shall be subject to forfeiture and no property right shall exist in them:
(1) Controlled dangerous substances, firearms which are unlawfully possessed, carried, acquired or used, illegally possessed gambling devices, untaxed cigarettes and untaxed special fuel. These shall be designated prima facie contraband.
(2) All property which has been, or is intended to be, utilized in furtherance of an unlawful activity, including, but not limited to, conveyances intended to facilitate the perpetration of illegal acts, or buildings or premises maintained for the purpose of committing offenses against the State.
(3) Property which has become or is intended to become an integral part of illegal activity, including, but not limited to, money which is earmarked for use as financing for an illegal gambling enterprise.
(4) Proceeds of illegal activities, including, but not limited to, property or money obtained as a result of the sale of prima facie contraband as defined by subsection a. (1), proceeds of illegal gambling, prostitution, bribery and extortion.
b. Any article subject to forfeiture under this chapter may be seized by the State or any law enforcement officer as evidence pending a criminal prosecution pursuant to section 2C:64-4 or, when no criminal proceeding is instituted, upon process issued by any court of competent jurisdiction over the property, except that seizure without such process may be made when not inconsistent with the Constitution of this State or the United States, and when
(1) The article is prima facie contraband; or,
(2) The property subject to seizure poses an immediate threat to the public health, safety or welfare.
c. For the purposes of this section: "Untaxed special fuel" means diesel fuel, No. 2 fuel oil and kerosene on which the motor fuel tax imposed pursuant to R.S.54:39-1 et seq. is not paid that is delivered, possessed, sold or transferred in this State in a manner not authorized pursuant to R.S.54:39-1 et seq. or P.L.1938, c.163 (C.56:6-1 et seq.).
Amended 1979,c.344,s.1; 1981,c.290,s.46; 1992,c.23,s.70.
2C:64-2. Forfeiture procedures; prima facie contraband Forfeiture Procedures; Prima Facie Contraband.
Except as provided in N.J.S. 2C:35-21, prima facie contraband shall be retained by the State until entry of judgment or dismissal of the criminal proceeding, if any, arising out of the seizure. Thereafter, prima facie contraband shall be forfeited to the entity funding the prosecuting agency involved, subject to the rights of owners and others holding interests pursuant to section 2C:64-5.
Amended by L. 1979, c. 344, s. 2; 1981, c. 290, s. 47; 1987, c. 106, s. 17.
2C:64-3. Forfeiture procedures 2C:64-3. Forfeiture procedures. a. Whenever any property other than prima facie contraband is subject to forfeiture under this chapter, such forfeiture may be enforced by a civil action, instituted within 90 days of the seizure and commenced by the State and against the property sought to be forfeited.
b. The complaint shall be verified on oath or affirmation. It shall describe with reasonable particularity the property that is the subject matter of the action and shall contain allegations setting forth the reason or reasons the article sought to be or which has been seized is contraband.
c. Notice of the action shall be given to any person known to have a property interest in the article. In addition, the notice requirements of the Rules of Court for an in rem action shall be followed.
d. The claimant of the property that is the subject of an action under this chapter shall file and serve his claim in the form of an answer in accordance with the Rules of Court. The answer shall be verified on oath or affirmation, and shall state the interest in the property by virtue of which the claimant demands its restitution and the right to defend the action. If the claim is made in behalf of the person entitled to possession by an agent, bailee or attorney, it shall state that he is duly authorized to make the claim.
e. If no answer is filed and served within the applicable time, the property seized shall be disposed of pursuant to N.J.S.2C:64-6.
f. If an answer is filed, the Superior or county district court shall set the matter down for a summary hearing as soon as practicable. Upon application of the State or claimant, if he be a defendant in a criminal proceeding arising out of the seizure, the Superior or county district court may stay proceedings in the forfeiture action until the criminal proceedings have been concluded by an entry of final judgment.
g. Any person with a property interest in the seized property, other than a defendant who is being prosecuted in connection with the seizure of property may secure its release pending the forfeiture action unless the article is dangerous to the public health, safety and welfare or the State can demonstrate that the property will probably be lost or destroyed if released or employed in subsequent criminal activity. Any person with such a property interest other than a defendant who is being prosecuted, prior to the release of said property shall post a bond with the court in the amount of the market value of the seized item.
h. The prosecuting agency with approval of the entity funding such agency, or any other entity, with the approval of the prosecuting agency, where the other entity's law enforcement agency participated in the surveillance, investigation or arrest which is the subject of the forfeiture action, may apply to the Superior Court for an order permitting use of seized property, pending the disposition of the forfeiture action provided, however, that such property shall be used solely for law enforcement purposes. Approval shall be liberally granted but shall be conditioned upon the filing of a bond in an amount equal to the market value of the item seized or a written guarantee of payment for property which may be subject to return, replacement or compensation as to reasonable value in the event that the forfeiture is refused or only partial extinguishment of property rights is ordered by the court.
i. If the property is of such nature that substantial difficulty may result in preserving its value during the pendency of the forfeiture action, the Superior or county district court may appoint a trustee to protect the interests of all parties involved in the action.
j. Evidence of a conviction of a criminal offense in which seized property was either used or provided an integral part of the State's proofs in the prosecution shall be considered in the forfeiture proceeding as creating a rebuttable presumption that the property was utilized in furtherance of an unlawful activity.
Amended 1979,c.344,s.3; 1981,c.290,s.48; 1989,c.279,s.1.
2C:64-4. Seized property; evidentiary use a. Nothing in this chapter shall impair the right of the State to retain evidence pending a criminal prosecution.
b. The fact that a prosecution involving seized property terminates without a conviction does not preclude forfeiture proceedings against the property pursuant to this chapter.
L.1978, c. 95, s. 2C:64-4, eff. Sept. 1, 1979. Amended by L.1979, c. 344, s. 4, eff. Jan. 23, 1980; L.1981, c. 290, s. 49, eff. Sept. 24, 1981.
2C:64-5. Seized property; rights of owners and others holding interests Seized Property; Rights of Owners and Others Holding Interests. a. No forfeiture under this chapter shall affect the rights of any lessor in the ordinary course of business or any person holding a perfected security interest in property subject to seizure unless it shall appear that such person had knowledge of or consented to any act or omission upon which the right of forfeiture is based. Such rights are only to the extent of interest in the seized property and at the option of the entity funding the prosecuting agency involved may be extinguished by appropriate payment.
b. Property seized under this chapter shall not be subject to forfeiture if the owner of the property establishes by a preponderance of the evidence that the owner was not involved in or aware of the unlawful activity and that the owner had done all that could reasonably be expected to prevent the proscribed use of the property by an agent. A person who uses or possesses property with the consent or knowledge of the owner is deemed to be the agent of the owner for purposes of this chapter.
c. Property seized under this chapter shall not be subject to forfeiture if the property is seized while entrusted to a person by the owner or the agent of the owner when the property has been entrusted to the person for repairs, restoration or other services to be performed on the property, and that person, without the owner's knowledge or consent, uses the property for unlawful purposes.
L. 1978, c. 95, s. 2C:64-5, eff. Sept. 1, 1979. Amended by L. 1979, c. 344, s. 5, eff. Jan. 23, 1980; L. 1981, c. 290, s. 50, eff. Sept. 24, 1981; L. 1986, c. 79, s. 1, eff. Aug. 6, 1986.
2C:64-6. Disposal of forfeited property 2C:64-6. Disposal of Forfeited Property. a. Property which has been forfeited shall be destroyed if it can serve no lawful purpose or it presents a danger to the public health, safety or welfare. All other forfeited property or any proceeds resulting from the forfeiture and all money seized pursuant to this chapter shall become the property of the entity funding the prosecuting agency involved and shall be disposed of, distributed, appropriated and used in accordance with the provisions of this chapter.
The prosecutor or the Attorney General, whichever is prosecuting the case, shall divide the forfeited property, any proceeds resulting from the forfeiture or any money seized pursuant to this chapter with any other entity where the other entity's law enforcement agency participated in the surveillance, investigation, arrest or prosecution resulting in the forfeiture, in proportion to the other entity's contribution to the surveillance, investigation, arrest or prosecution resulting in the forfeiture, as determined in the discretion of the prosecutor or the Attorney General, whichever is prosecuting the case. Notwithstanding any other provision of law, such forfeited property and proceeds shall be used solely for law enforcement purposes, and shall be designated for the exclusive use of the law enforcement agency which contributed to the surveillance, investigation, arrest or prosecution resulting in the forfeiture.
The Attorney General is authorized to promulgate rules and regulations to implement and enforce the provisions of this act.
b. For a period of two years from the date of enactment of P.L.1993, c.227 (C.26:4-100.13 et al.), 10% of the proceeds obtained by the Attorney General under the provisions of subsection a. of this section shall be deposited into the Hepatitis Inoculation Fund established pursuant to section 2 of P.L.1993, c.227 (C.26:4-100.13).
c. Beginning two years from the date of enactment of P.L.1993, c.227 (C.26:4-100.13 et al.) and in subsequent years, 5% of the proceeds obtained by the Attorney General under the provisions of subsection a. of this section shall be deposited into the Hepatitis Inoculation Fund established pursuant to section 2 of P.L.1993, c.227 (C.26:4-100.13).
Amended 1979,c.344,s.6; 1985,c.110,s.1; 1986,c.135,s.1; 1993,c.227,s.1.
2C:64-7. Vesting of title in forfeited property Vesting of Title in Forfeited Property. Title to property forfeited under this chapter shall vest in the entity funding the prosecuting agency involved at the time the item was utilized illegally, or, in the case of proceeds, when received.
If another entity's law enforcement agency has participated in the surveillance, investigation, arrest or prosecution resulting in the forfeiture, then the prosecutor or the Attorney General, whichever is prosecuting the case, shall vest title to forfeited property, including motor vehicles, by dividing the forfeited property with the other entity in proportion to the other entity's contribution to the surveillance, investigation, arrest or prosecution resulting in the forfeiture, as determined in the discretion of the prosecutor or the Attorney General. If the property, including motor vehicles, cannot be divided as required by this section, then the prosecutor or the Attorney General, whichever is prosecuting the case, shall sell the property, including motor vehicles, and the proceeds of the sale shall be divided with the other entity in proportion to the other entity's contribution to the surveillance, investigation, arrest or prosecution resulting in the forfeiture, as determined in the discretion of the prosecutor or the Attorney General.
L. 1978, c. 95, s. 2C:64-7, eff. Sept. 1, 1979. Amended by L. 1979, c. 344, s. 7, eff. Jan. 23, 1980; L. 1985, c. 110, s. 2, eff. April 9, 1985; L. 1986, c. 135, s. 2, eff. Dec. 1, 1986.
2C:64-8. Seized property; statute of limitations on claims Any person who could not with due diligence have discovered that property which he owns was seized as contraband may file a claim for its return or the value thereof at the time of seizure within 3 years of the seizure if he can demonstrate that he did not consent to, and had no knowledge of its unlawful use. If the property has been sold, the claimant receives a claim against proceeds.
L.1978, c. 95, s. 2C:64-8, eff. Sept. 1, 1979. Amended by L.1979, c. 344, s. 8, eff. Jan. 23, 1980.
2C:64-9. Forfeited weapons with military value; donation to National Guard Militia Museum Any weapon with present or historical military value that has been forfeited pursuant to the provisions of chapter 64 of Title 2C of the New Jersey Statutes may be donated to the National Guard Militia Museum of New Jersey at Sea Girt by the law enforcement agency retaining it.
L.1981, c. 112, s. 1, eff. April 2, 1981. 2C:65-1. Procedure to be followed by law enforcement agencies when stolen property is taken into custody When any article of property alleged to be stolen comes into the custody of a law enforcement agency, that agency shall enter in a suitable book a description of that article and shall attach a number to each article, and make a corresponding entry thereof. The agency shall also make and retain a complete photographic record of the property. The photographic record, upon proper authentication, may be introduced as evidence in any court in lieu of the property.
L.1979, c. 178, s. 140, eff. Sept. 1, 1979.
2C:65-2. Release of stolen property prior to final determination of proceeding a. A law enforcement agency, upon satisfactory proof of ownership of property held pursuant to this section, and upon presentation of proper personal identification, may release the property to the person presenting such proof pursuant to the provisions of subsection b. The release shall be without prejudice to the State or to the person from whom custody of the property was taken or to any person who may have a claim against the property. Any such delivery shall be noted in the book required by 2C:65-1. The person to whom the property is delivered shall sign a sworn declaration of ownership which shall be retained by the agency.
b. Nothing in this section shall prohibit a law enforcement agency from immediately returning property to its rightful owner where the agency is satisfied that there is no colorable dispute as to ownership; provided, however, that where the law enforcement agency has reason to believe that there is a dispute concerning ownership of property, or if the person from whom custody of the property was taken shall claim ownership, or if any other person shall claim ownership, the property shall not be released to any person claiming it until a hearing has been held pursuant to subsection c.
c. The court having jurisdiction over the case in which the stolen property is involved, upon application by the person from whom possession was taken, or the person claiming ownership, shall review the matter and order the property to be delivered to the person claiming ownership, or to be retained by the law enforcement agency upon a finding that the person claiming ownership of the property is not entitled thereto.
L.1979, c. 178, s. 140, eff. Sept. 1, 1979. Amended by L.1981, c. 290, s. 51, eff. Sept. 24, 1981.
2C:65-3. Disposition of stolen property after final determination of proceeding a. After final determination of any action or proceeding, the court, on application of the person claiming ownership, or an agent designated in writing by the person, may order all property, other than documentary exhibits, to be delivered to the person.
b. After the expiration of 6 months from the final determination of the action, if the person entitled to the property is unknown, or fails to apply, the court in which the case was tried, upon application of the law enforcement agency in possession of the property, shall make an order specifying what property may be released from the custody of the agency without prejudice to the State. Upon receipt of the order, the clerk of the court shall transfer the property for disposal at public sale to the State, county or municipality, whichever was the prosecuting authority. The property shall not be transferred where it consists of money or currency, but it shall be deposited immediately in the general fund of either the State, county or municipality.
L.1979, c. 178, s. 140, eff. Sept. 1, 1979.
2C:65-4. Disposition of documentary exhibits No exhibit shall be destroyed or otherwise disposed of until 60 days after the clerk of the court has posted a notice conspicuously in three places in the county, referring to the order for the disposition, describing briefly the exhibit, and indicating the date after which the exhibit will be destroyed or otherwise disposed of.
L.1979, c. 178, s. 140, eff. Sept. 1, 1979.
2C:66-1. Attachment of deposited funds of suspected terrorists or their supporters 1.Attachment of deposited funds.
a.As used in this act:
"Financial institution" means a state or federally chartered bank, savings bank or savings and loan association or any other financial services company or provider, including, but not limited to, broker-dealers, investment companies, money market and mutual funds, credit unions and insurers.
b.Upon application by the Attorney General, a court may issue an attachment order directing a financial institution to freeze some or all of the funds or assets deposited with or held by the financial institution by or on behalf of an account holder when there exists a reasonable suspicion that the account holder has committed or is about to commit the crime of terrorism in violation of section 2 of P.L.2002, c.26 (C.2C:38-2) or soliciting or providing material support or resources for terrorism in violation of section 5 of P.L.2002, c.26 (C.2C:38-5).
L.2003,c.22,s.1.
2C:66-2. Application by Attorney General 2.Application. The application of the Attorney General required by this act shall contain:
a.a statement of the approximate financial loss caused by the account holder in the commission of the crime of terrorism in violation of section 2 of P.L.2002, c 26 (C.2C:38-2) or soliciting or providing material support or resources for terrorism in violation of section 5 of P.L.2002, c.26 (C.2C:38-5);
b.a statement of facts relied upon by the Attorney General, including the details of the particular offense that is about to be committed or that has been committed; and
c.identification of the account holder's name and financial institution account number.
L.2003,c.22,s.2.
a. Any interest in the following shall be subject to forfeiture and no property right shall exist in them:
(1) Controlled dangerous substances, firearms which are unlawfully possessed, carried, acquired or used, illegally possessed gambling devices, untaxed cigarettes and untaxed special fuel. These shall be designated prima facie contraband.
(2) All property which has been, or is intended to be, utilized in furtherance of an unlawful activity, including, but not limited to, conveyances intended to facilitate the perpetration of illegal acts, or buildings or premises maintained for the purpose of committing offenses against the State.
(3) Property which has become or is intended to become an integral part of illegal activity, including, but not limited to, money which is earmarked for use as financing for an illegal gambling enterprise.
(4) Proceeds of illegal activities, including, but not limited to, property or money obtained as a result of the sale of prima facie contraband as defined by subsection a. (1), proceeds of illegal gambling, prostitution, bribery and extortion.
b. Any article subject to forfeiture under this chapter may be seized by the State or any law enforcement officer as evidence pending a criminal prosecution pursuant to section 2C:64-4 or, when no criminal proceeding is instituted, upon process issued by any court of competent jurisdiction over the property, except that seizure without such process may be made when not inconsistent with the Constitution of this State or the United States, and when
(1) The article is prima facie contraband; or,
(2) The property subject to seizure poses an immediate threat to the public health, safety or welfare.
c. For the purposes of this section: "Untaxed special fuel" means diesel fuel, No. 2 fuel oil and kerosene on which the motor fuel tax imposed pursuant to R.S.54:39-1 et seq. is not paid that is delivered, possessed, sold or transferred in this State in a manner not authorized pursuant to R.S.54:39-1 et seq. or P.L.1938, c.163 (C.56:6-1 et seq.).
Amended 1979,c.344,s.1; 1981,c.290,s.46; 1992,c.23,s.70.
2C:64-2. Forfeiture procedures; prima facie contraband Forfeiture Procedures; Prima Facie Contraband.
Except as provided in N.J.S. 2C:35-21, prima facie contraband shall be retained by the State until entry of judgment or dismissal of the criminal proceeding, if any, arising out of the seizure. Thereafter, prima facie contraband shall be forfeited to the entity funding the prosecuting agency involved, subject to the rights of owners and others holding interests pursuant to section 2C:64-5.
Amended by L. 1979, c. 344, s. 2; 1981, c. 290, s. 47; 1987, c. 106, s. 17.
2C:64-3. Forfeiture procedures 2C:64-3. Forfeiture procedures. a. Whenever any property other than prima facie contraband is subject to forfeiture under this chapter, such forfeiture may be enforced by a civil action, instituted within 90 days of the seizure and commenced by the State and against the property sought to be forfeited.
b. The complaint shall be verified on oath or affirmation. It shall describe with reasonable particularity the property that is the subject matter of the action and shall contain allegations setting forth the reason or reasons the article sought to be or which has been seized is contraband.
c. Notice of the action shall be given to any person known to have a property interest in the article. In addition, the notice requirements of the Rules of Court for an in rem action shall be followed.
d. The claimant of the property that is the subject of an action under this chapter shall file and serve his claim in the form of an answer in accordance with the Rules of Court. The answer shall be verified on oath or affirmation, and shall state the interest in the property by virtue of which the claimant demands its restitution and the right to defend the action. If the claim is made in behalf of the person entitled to possession by an agent, bailee or attorney, it shall state that he is duly authorized to make the claim.
e. If no answer is filed and served within the applicable time, the property seized shall be disposed of pursuant to N.J.S.2C:64-6.
f. If an answer is filed, the Superior or county district court shall set the matter down for a summary hearing as soon as practicable. Upon application of the State or claimant, if he be a defendant in a criminal proceeding arising out of the seizure, the Superior or county district court may stay proceedings in the forfeiture action until the criminal proceedings have been concluded by an entry of final judgment.
g. Any person with a property interest in the seized property, other than a defendant who is being prosecuted in connection with the seizure of property may secure its release pending the forfeiture action unless the article is dangerous to the public health, safety and welfare or the State can demonstrate that the property will probably be lost or destroyed if released or employed in subsequent criminal activity. Any person with such a property interest other than a defendant who is being prosecuted, prior to the release of said property shall post a bond with the court in the amount of the market value of the seized item.
h. The prosecuting agency with approval of the entity funding such agency, or any other entity, with the approval of the prosecuting agency, where the other entity's law enforcement agency participated in the surveillance, investigation or arrest which is the subject of the forfeiture action, may apply to the Superior Court for an order permitting use of seized property, pending the disposition of the forfeiture action provided, however, that such property shall be used solely for law enforcement purposes. Approval shall be liberally granted but shall be conditioned upon the filing of a bond in an amount equal to the market value of the item seized or a written guarantee of payment for property which may be subject to return, replacement or compensation as to reasonable value in the event that the forfeiture is refused or only partial extinguishment of property rights is ordered by the court.
i. If the property is of such nature that substantial difficulty may result in preserving its value during the pendency of the forfeiture action, the Superior or county district court may appoint a trustee to protect the interests of all parties involved in the action.
j. Evidence of a conviction of a criminal offense in which seized property was either used or provided an integral part of the State's proofs in the prosecution shall be considered in the forfeiture proceeding as creating a rebuttable presumption that the property was utilized in furtherance of an unlawful activity.
Amended 1979,c.344,s.3; 1981,c.290,s.48; 1989,c.279,s.1.
2C:64-4. Seized property; evidentiary use a. Nothing in this chapter shall impair the right of the State to retain evidence pending a criminal prosecution.
b. The fact that a prosecution involving seized property terminates without a conviction does not preclude forfeiture proceedings against the property pursuant to this chapter.
L.1978, c. 95, s. 2C:64-4, eff. Sept. 1, 1979. Amended by L.1979, c. 344, s. 4, eff. Jan. 23, 1980; L.1981, c. 290, s. 49, eff. Sept. 24, 1981.
2C:64-5. Seized property; rights of owners and others holding interests Seized Property; Rights of Owners and Others Holding Interests. a. No forfeiture under this chapter shall affect the rights of any lessor in the ordinary course of business or any person holding a perfected security interest in property subject to seizure unless it shall appear that such person had knowledge of or consented to any act or omission upon which the right of forfeiture is based. Such rights are only to the extent of interest in the seized property and at the option of the entity funding the prosecuting agency involved may be extinguished by appropriate payment.
b. Property seized under this chapter shall not be subject to forfeiture if the owner of the property establishes by a preponderance of the evidence that the owner was not involved in or aware of the unlawful activity and that the owner had done all that could reasonably be expected to prevent the proscribed use of the property by an agent. A person who uses or possesses property with the consent or knowledge of the owner is deemed to be the agent of the owner for purposes of this chapter.
c. Property seized under this chapter shall not be subject to forfeiture if the property is seized while entrusted to a person by the owner or the agent of the owner when the property has been entrusted to the person for repairs, restoration or other services to be performed on the property, and that person, without the owner's knowledge or consent, uses the property for unlawful purposes.
L. 1978, c. 95, s. 2C:64-5, eff. Sept. 1, 1979. Amended by L. 1979, c. 344, s. 5, eff. Jan. 23, 1980; L. 1981, c. 290, s. 50, eff. Sept. 24, 1981; L. 1986, c. 79, s. 1, eff. Aug. 6, 1986.
2C:64-6. Disposal of forfeited property 2C:64-6. Disposal of Forfeited Property. a. Property which has been forfeited shall be destroyed if it can serve no lawful purpose or it presents a danger to the public health, safety or welfare. All other forfeited property or any proceeds resulting from the forfeiture and all money seized pursuant to this chapter shall become the property of the entity funding the prosecuting agency involved and shall be disposed of, distributed, appropriated and used in accordance with the provisions of this chapter.
The prosecutor or the Attorney General, whichever is prosecuting the case, shall divide the forfeited property, any proceeds resulting from the forfeiture or any money seized pursuant to this chapter with any other entity where the other entity's law enforcement agency participated in the surveillance, investigation, arrest or prosecution resulting in the forfeiture, in proportion to the other entity's contribution to the surveillance, investigation, arrest or prosecution resulting in the forfeiture, as determined in the discretion of the prosecutor or the Attorney General, whichever is prosecuting the case. Notwithstanding any other provision of law, such forfeited property and proceeds shall be used solely for law enforcement purposes, and shall be designated for the exclusive use of the law enforcement agency which contributed to the surveillance, investigation, arrest or prosecution resulting in the forfeiture.
The Attorney General is authorized to promulgate rules and regulations to implement and enforce the provisions of this act.
b. For a period of two years from the date of enactment of P.L.1993, c.227 (C.26:4-100.13 et al.), 10% of the proceeds obtained by the Attorney General under the provisions of subsection a. of this section shall be deposited into the Hepatitis Inoculation Fund established pursuant to section 2 of P.L.1993, c.227 (C.26:4-100.13).
c. Beginning two years from the date of enactment of P.L.1993, c.227 (C.26:4-100.13 et al.) and in subsequent years, 5% of the proceeds obtained by the Attorney General under the provisions of subsection a. of this section shall be deposited into the Hepatitis Inoculation Fund established pursuant to section 2 of P.L.1993, c.227 (C.26:4-100.13).
Amended 1979,c.344,s.6; 1985,c.110,s.1; 1986,c.135,s.1; 1993,c.227,s.1.
2C:64-7. Vesting of title in forfeited property Vesting of Title in Forfeited Property. Title to property forfeited under this chapter shall vest in the entity funding the prosecuting agency involved at the time the item was utilized illegally, or, in the case of proceeds, when received.
If another entity's law enforcement agency has participated in the surveillance, investigation, arrest or prosecution resulting in the forfeiture, then the prosecutor or the Attorney General, whichever is prosecuting the case, shall vest title to forfeited property, including motor vehicles, by dividing the forfeited property with the other entity in proportion to the other entity's contribution to the surveillance, investigation, arrest or prosecution resulting in the forfeiture, as determined in the discretion of the prosecutor or the Attorney General. If the property, including motor vehicles, cannot be divided as required by this section, then the prosecutor or the Attorney General, whichever is prosecuting the case, shall sell the property, including motor vehicles, and the proceeds of the sale shall be divided with the other entity in proportion to the other entity's contribution to the surveillance, investigation, arrest or prosecution resulting in the forfeiture, as determined in the discretion of the prosecutor or the Attorney General.
L. 1978, c. 95, s. 2C:64-7, eff. Sept. 1, 1979. Amended by L. 1979, c. 344, s. 7, eff. Jan. 23, 1980; L. 1985, c. 110, s. 2, eff. April 9, 1985; L. 1986, c. 135, s. 2, eff. Dec. 1, 1986.
2C:64-8. Seized property; statute of limitations on claims Any person who could not with due diligence have discovered that property which he owns was seized as contraband may file a claim for its return or the value thereof at the time of seizure within 3 years of the seizure if he can demonstrate that he did not consent to, and had no knowledge of its unlawful use. If the property has been sold, the claimant receives a claim against proceeds.
L.1978, c. 95, s. 2C:64-8, eff. Sept. 1, 1979. Amended by L.1979, c. 344, s. 8, eff. Jan. 23, 1980.
2C:64-9. Forfeited weapons with military value; donation to National Guard Militia Museum Any weapon with present or historical military value that has been forfeited pursuant to the provisions of chapter 64 of Title 2C of the New Jersey Statutes may be donated to the National Guard Militia Museum of New Jersey at Sea Girt by the law enforcement agency retaining it.
L.1981, c. 112, s. 1, eff. April 2, 1981. 2C:65-1. Procedure to be followed by law enforcement agencies when stolen property is taken into custody When any article of property alleged to be stolen comes into the custody of a law enforcement agency, that agency shall enter in a suitable book a description of that article and shall attach a number to each article, and make a corresponding entry thereof. The agency shall also make and retain a complete photographic record of the property. The photographic record, upon proper authentication, may be introduced as evidence in any court in lieu of the property.
L.1979, c. 178, s. 140, eff. Sept. 1, 1979.
2C:65-2. Release of stolen property prior to final determination of proceeding a. A law enforcement agency, upon satisfactory proof of ownership of property held pursuant to this section, and upon presentation of proper personal identification, may release the property to the person presenting such proof pursuant to the provisions of subsection b. The release shall be without prejudice to the State or to the person from whom custody of the property was taken or to any person who may have a claim against the property. Any such delivery shall be noted in the book required by 2C:65-1. The person to whom the property is delivered shall sign a sworn declaration of ownership which shall be retained by the agency.
b. Nothing in this section shall prohibit a law enforcement agency from immediately returning property to its rightful owner where the agency is satisfied that there is no colorable dispute as to ownership; provided, however, that where the law enforcement agency has reason to believe that there is a dispute concerning ownership of property, or if the person from whom custody of the property was taken shall claim ownership, or if any other person shall claim ownership, the property shall not be released to any person claiming it until a hearing has been held pursuant to subsection c.
c. The court having jurisdiction over the case in which the stolen property is involved, upon application by the person from whom possession was taken, or the person claiming ownership, shall review the matter and order the property to be delivered to the person claiming ownership, or to be retained by the law enforcement agency upon a finding that the person claiming ownership of the property is not entitled thereto.
L.1979, c. 178, s. 140, eff. Sept. 1, 1979. Amended by L.1981, c. 290, s. 51, eff. Sept. 24, 1981.
2C:65-3. Disposition of stolen property after final determination of proceeding a. After final determination of any action or proceeding, the court, on application of the person claiming ownership, or an agent designated in writing by the person, may order all property, other than documentary exhibits, to be delivered to the person.
b. After the expiration of 6 months from the final determination of the action, if the person entitled to the property is unknown, or fails to apply, the court in which the case was tried, upon application of the law enforcement agency in possession of the property, shall make an order specifying what property may be released from the custody of the agency without prejudice to the State. Upon receipt of the order, the clerk of the court shall transfer the property for disposal at public sale to the State, county or municipality, whichever was the prosecuting authority. The property shall not be transferred where it consists of money or currency, but it shall be deposited immediately in the general fund of either the State, county or municipality.
L.1979, c. 178, s. 140, eff. Sept. 1, 1979.
2C:65-4. Disposition of documentary exhibits No exhibit shall be destroyed or otherwise disposed of until 60 days after the clerk of the court has posted a notice conspicuously in three places in the county, referring to the order for the disposition, describing briefly the exhibit, and indicating the date after which the exhibit will be destroyed or otherwise disposed of.
L.1979, c. 178, s. 140, eff. Sept. 1, 1979.
2C:66-1. Attachment of deposited funds of suspected terrorists or their supporters 1.Attachment of deposited funds.
a.As used in this act:
"Financial institution" means a state or federally chartered bank, savings bank or savings and loan association or any other financial services company or provider, including, but not limited to, broker-dealers, investment companies, money market and mutual funds, credit unions and insurers.
b.Upon application by the Attorney General, a court may issue an attachment order directing a financial institution to freeze some or all of the funds or assets deposited with or held by the financial institution by or on behalf of an account holder when there exists a reasonable suspicion that the account holder has committed or is about to commit the crime of terrorism in violation of section 2 of P.L.2002, c.26 (C.2C:38-2) or soliciting or providing material support or resources for terrorism in violation of section 5 of P.L.2002, c.26 (C.2C:38-5).
L.2003,c.22,s.1.
2C:66-2. Application by Attorney General 2.Application. The application of the Attorney General required by this act shall contain:
a.a statement of the approximate financial loss caused by the account holder in the commission of the crime of terrorism in violation of section 2 of P.L.2002, c 26 (C.2C:38-2) or soliciting or providing material support or resources for terrorism in violation of section 5 of P.L.2002, c.26 (C.2C:38-5);
b.a statement of facts relied upon by the Attorney General, including the details of the particular offense that is about to be committed or that has been committed; and
c.identification of the account holder's name and financial institution account number.
L.2003,c.22,s.2.
Proof Beyond a Reasonable Doubt
Proof beyond a reasonable doubt; 2C:1-13. affirmative defenses; burden of proving fact when not an element of an offense a. No person may be convicted of an offense unless each element of such offense is proved beyond a reasonable doubt. In the absence of such proof, the innocence of the defendant is assumed.
b. Subsection a. of this section does not:
(1) Require the disproof of an affirmative defense unless and until there is evidence supporting such defense; or
(2) Apply to any defense which the code or another statute requires the defendant to prove by a preponderance of evidence or such other standard as specified in this code.
c. A defense is affirmative, within the meaning of subsection b.(1) of this section, when:
(1) It arises under a section of the code which so provides; or
(2) It relates to an offense defined by a statute other than the code and such statute so provides; or
d. When the application of the code depends upon the finding of a fact which is not an element of an offense, unless the code otherwise provides:
(1) The burden of proving the fact is on the prosecution or defendant, depending on whose interest or contention will be furthered if the finding should be made; and
(2) The fact must be proved to the satisfaction of the court or jury, as the case may be.
e. When the code or other statute defining an offense establishes a presumption with respect to any fact which is an element of an offense, it has the meaning accorded it by the law of evidence.
f. In any civil action commenced pursuant to any provision of this code the burden of proof shall be by a preponderance of the evidence.
L.1978, c. 95, s. 2C:1-13, eff. Sept. 1, 1979. Amended by L.1979, c. 178, s. 7, eff. Sept. 1, 1979.
2C:1-14. Definitions 2C:1-14. In this code, unless a different meaning plainly is required:
a. "Statute" includes the Constitution and a local law or ordinance of a political subdivision of the State;
b. "Act" or "action" means a bodily movement whether voluntary or involuntary;
c. "Omission" means a failure to act;
d. "Conduct" means an action or omission and its accompanying state of mind, or, where relevant, a series of acts and omissions;
e. "Actor" includes, where relevant, a person guilty of an omission;
f. "Acted" includes, where relevant, "omitted to act";
g. "Person," "he," and "actor" include any natural person and, where relevant, a corporation or an unincorporated association;
h. "Element of an offense" means (1) such conduct or (2) such attendant circumstances or (3) such a result of conduct as
(a)Is included in the description of the forbidden conduct in the definition of the offense;
(b)Establishes the required kind of culpability;
(c)Negatives an excuse or justification for such conduct;
(d)Negatives a defense under the statute of limitations; or
(e)Establishes jurisdiction or venue;
i. "Material element of an offense" means an element that does not relate exclusively to the statute of limitations, jurisdiction, venue or to any other matter similarly unconnected with (1) the harm or evil, incident to conduct, sought to be prevented by the law defining the offense, or (2) the existence of a justification or excuse for such conduct;
j. "Reasonably believes" or "reasonable belief" designates a belief the holding of which does not make the actor reckless or criminally negligent;
k. "Offense" means a crime, a disorderly persons offense or a petty disorderly persons offense unless a particular section in this code is intended to apply to less than all three;
l.(Deleted by amendment, P.L. 1991, c.91).
m. "Amount involved," "benefit," and other terms of value. Where it is necessary in this act to determine value, for purposes of fixing the degree of an offense, that value shall be the fair market value at the time and place of the operative act.
n. "Motor vehicle" shall have the meaning provided in R.S .39:1-1.
o. "Unlawful taking of a motor vehicle" means conduct prohibited under N.J.S. 2C:20-10 when the means of conveyance taken, operated or controlled is a motor vehicle.
p. "Research facility" means any building, laboratory, institution, organization, school, or person engaged in research, testing, educational or experimental activities, or any commercial or academic enterprise that uses warm-blooded or cold-blooded animals for food or fiber production, agriculture, research, testing, experimentation or education. A research facility includes, but is not limited to, any enclosure, separately secured yard, pad, pond, vehicle, building structure or premises or separately secured portion thereof.
q. "Communication" means any form of communication made by any means, including, but not limited to, any verbal or written communication, communications conveyed by any electronic communication device, which includes but is not limited to, a wire, radio, electromagnetic, photoelectric or photo-optical system, telephone, including a cordless, cellular or digital telephone, computer, video recorder, fax machine, pager, or any other means of transmitting voice or data and communications made by sign or gesture.
Amended 1979, c.178, s.8; 1991, c.91, s.142; 1993, c.219, s.1; 1995, c.20, s.1; 2001, c.220, s.1.
2C:2-1 Requirement of voluntary act; omission as basis of liability; possession as an act
2C:2-1. Requirement of Voluntary Act; Omission as Basis of Liability; Possession as an act. a. A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable. A bodily movement that is not a product of the effort or determination of the actor, either conscious or habitual, is not a voluntary act within the meaning of this section.
b. Liability for the commission of an offense may not be based on an omission unaccompanied by action unless:
(1) The omission is expressly made sufficient by the law defining the offense; or
(2) A duty to perform the omitted act is otherwise imposed by law, including but not limited to, laws such as the "Uniform Fire Safety Act," P.L. 1983, c.383 (C. 52:27D-192 et seq.), the "State Uniform Construction Code Act," P.L. 1975, c.217 (C. 52:27D-119 et seq.), or any other law intended to protect the public safety or any rule or regulation promulgated thereunder.
c. Possession is an act, within the meaning of this section, if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession.
Amended 1997, c. 180, s.1.
b. Subsection a. of this section does not:
(1) Require the disproof of an affirmative defense unless and until there is evidence supporting such defense; or
(2) Apply to any defense which the code or another statute requires the defendant to prove by a preponderance of evidence or such other standard as specified in this code.
c. A defense is affirmative, within the meaning of subsection b.(1) of this section, when:
(1) It arises under a section of the code which so provides; or
(2) It relates to an offense defined by a statute other than the code and such statute so provides; or
d. When the application of the code depends upon the finding of a fact which is not an element of an offense, unless the code otherwise provides:
(1) The burden of proving the fact is on the prosecution or defendant, depending on whose interest or contention will be furthered if the finding should be made; and
(2) The fact must be proved to the satisfaction of the court or jury, as the case may be.
e. When the code or other statute defining an offense establishes a presumption with respect to any fact which is an element of an offense, it has the meaning accorded it by the law of evidence.
f. In any civil action commenced pursuant to any provision of this code the burden of proof shall be by a preponderance of the evidence.
L.1978, c. 95, s. 2C:1-13, eff. Sept. 1, 1979. Amended by L.1979, c. 178, s. 7, eff. Sept. 1, 1979.
2C:1-14. Definitions 2C:1-14. In this code, unless a different meaning plainly is required:
a. "Statute" includes the Constitution and a local law or ordinance of a political subdivision of the State;
b. "Act" or "action" means a bodily movement whether voluntary or involuntary;
c. "Omission" means a failure to act;
d. "Conduct" means an action or omission and its accompanying state of mind, or, where relevant, a series of acts and omissions;
e. "Actor" includes, where relevant, a person guilty of an omission;
f. "Acted" includes, where relevant, "omitted to act";
g. "Person," "he," and "actor" include any natural person and, where relevant, a corporation or an unincorporated association;
h. "Element of an offense" means (1) such conduct or (2) such attendant circumstances or (3) such a result of conduct as
(a)Is included in the description of the forbidden conduct in the definition of the offense;
(b)Establishes the required kind of culpability;
(c)Negatives an excuse or justification for such conduct;
(d)Negatives a defense under the statute of limitations; or
(e)Establishes jurisdiction or venue;
i. "Material element of an offense" means an element that does not relate exclusively to the statute of limitations, jurisdiction, venue or to any other matter similarly unconnected with (1) the harm or evil, incident to conduct, sought to be prevented by the law defining the offense, or (2) the existence of a justification or excuse for such conduct;
j. "Reasonably believes" or "reasonable belief" designates a belief the holding of which does not make the actor reckless or criminally negligent;
k. "Offense" means a crime, a disorderly persons offense or a petty disorderly persons offense unless a particular section in this code is intended to apply to less than all three;
l.(Deleted by amendment, P.L. 1991, c.91).
m. "Amount involved," "benefit," and other terms of value. Where it is necessary in this act to determine value, for purposes of fixing the degree of an offense, that value shall be the fair market value at the time and place of the operative act.
n. "Motor vehicle" shall have the meaning provided in R.S .39:1-1.
o. "Unlawful taking of a motor vehicle" means conduct prohibited under N.J.S. 2C:20-10 when the means of conveyance taken, operated or controlled is a motor vehicle.
p. "Research facility" means any building, laboratory, institution, organization, school, or person engaged in research, testing, educational or experimental activities, or any commercial or academic enterprise that uses warm-blooded or cold-blooded animals for food or fiber production, agriculture, research, testing, experimentation or education. A research facility includes, but is not limited to, any enclosure, separately secured yard, pad, pond, vehicle, building structure or premises or separately secured portion thereof.
q. "Communication" means any form of communication made by any means, including, but not limited to, any verbal or written communication, communications conveyed by any electronic communication device, which includes but is not limited to, a wire, radio, electromagnetic, photoelectric or photo-optical system, telephone, including a cordless, cellular or digital telephone, computer, video recorder, fax machine, pager, or any other means of transmitting voice or data and communications made by sign or gesture.
Amended 1979, c.178, s.8; 1991, c.91, s.142; 1993, c.219, s.1; 1995, c.20, s.1; 2001, c.220, s.1.
2C:2-1 Requirement of voluntary act; omission as basis of liability; possession as an act
2C:2-1. Requirement of Voluntary Act; Omission as Basis of Liability; Possession as an act. a. A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable. A bodily movement that is not a product of the effort or determination of the actor, either conscious or habitual, is not a voluntary act within the meaning of this section.
b. Liability for the commission of an offense may not be based on an omission unaccompanied by action unless:
(1) The omission is expressly made sufficient by the law defining the offense; or
(2) A duty to perform the omitted act is otherwise imposed by law, including but not limited to, laws such as the "Uniform Fire Safety Act," P.L. 1983, c.383 (C. 52:27D-192 et seq.), the "State Uniform Construction Code Act," P.L. 1975, c.217 (C. 52:27D-119 et seq.), or any other law intended to protect the public safety or any rule or regulation promulgated thereunder.
c. Possession is an act, within the meaning of this section, if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession.
Amended 1997, c. 180, s.1.
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