Criminal Articles from www.NJLaws website

Wednesday, October 9, 2013

Defending a Juvenile Case in New Jersey

Handling juvenile delinquency cases is becoming a sub-specialty that requires special knowledge of the juvenile justice system. Juvenile cases are difficult to handle for different reasons:
(1) The juveniles often refuse to admit to their attorney any participation in the offense despite clear guilt. (2) The parents sometimes refuse to acknowledge their child's involvement. (3) Different rules and court systems are involved.
By commitment and preparation, you can obtain excellent results and satisfy clients. Too often lawyers throw up their hands when a client presents a criminal charge. Rather than simply suggest that a client plead guilty and avoid litigation, an attorney should accept the challenge and apply his best legal talents to protect the clients rights.
Attorneys should never provide legal advice over the telephone. We do however often advise potential clients of some of the mandatory penalties and incarceration or custodial terms that the court could impose. This makes people realize the seriousness of the charges against them. We direct them to bring in a copy of the complaint, all their papers in connection with their case and any documents they received from their states Division of Motor Vehicles. Oftentimes I will instruct them to write a narrative if it is a case that is fact- specific or involves a great deal of detail, such as an assault case. When the client is first in the office, I have him fill out the Confidential New Criminal Case Interview Sheet. We obtain background information such as their name, address, the offenses charged, date of the persons arrest, other witnesses, statements given to them by the police, their occupation and information regarding prior criminal convictions. Our interview sheet also asks if there is anything else important. The extent to which the client fills out the form lets us know whether or not the client will follow instructions and cooperate with us.
After reviewing the summons and the interview sheet, I ask a series of questions of the client. We request the client wait until the end of the interview before explaining their side of the story. We also ask them if there is anything else of importance in connection with the case that we should know. The client may have pending serious criminal charges in another state or county. I usually open up our statute book and show the clients the specific language of the offense they are charged with and explain to them the maximum penalties that could be imposed. By understanding the charges they are facing, my clients are more likely to realize the seriousness of the offense and pay our retainer. The ABA adopted Rules of Professional Conduct indicate a retainer letter or written statement of fees is required for new clients. I also provide all my clients with a brochure explaining how to appear in court, a brochure on surcharges, a brochure on points, and a brochure regarding alcohol counseling/substance abuse treatment, if applicable. I recommend that my clients provide me with a list of between 10 to 15 reasons why they should not go to jail and why the court should impose the minimum license suspension. This provides us with information for mitigation and penalties and also provides information to be considered by the judge in sentencing.
I. WHO IS THE CLIENT?
The client must be the juvenile charged. It is not the parent or grandmother who pays the bills. It is important to preserve the confidence of the client. I let the juvenile know that they can call us whenever they want, and we will not tell their parents anything told in confidence. Discovery in non-motor vehicle cases is requested in writing to the County Prosecutor, not the Municipal Prosecutor. Motor vehicle charges alone are heard by the Municipal Court Judge and handled by the Municipal Prosecutor.
We also send a discovery request to the police department involved. If the Complaint was signed by a private citizen (such as harassment or shoplifting), we will serve a specific request for discovery upon the complainant. Under the Court Rules, discovery should be supplied within twenty (20) days. Mark your calendar for thirty (30) days, then call up and request discovery. If requests are ignored, file a Motion to Dismiss Complaint or to Compel Discovery. Trial Call is the next appearance and the defense counsel will receive discovery, if it has not previously been received. Applicable motions should be filed prior to the trial call: Motion to Suppress, Compel Additional Discovery, Dismiss Complaint, etc. Juveniles have most of the same rights under the Constitution as adults: - 4th Amendment - No unreasonable searches - 5th Amendment - Right to Remain Silent - 6th Amendment - Right to Attorney - 6th Amendment - Right to Cross Examine Witnesses
Unlike adults, juveniles do not have a right to a jury trial and do not have to post bail. It is a popular misconception that juvenile arrests are automatically erased when the juvenile turns 18. The criminal charge, even if later dismissed, stays on their record forever unless they have their attorney file a formal petition for Expungement.
Once we receive our retainer, we begin work right away. Usually while the client is still in the office, we prepare a discovery letter on the computer to the prosecutor and court and hand a copy to the client. We occasionally call the court to advise them that we will be handling the case.
However, we usually recommend the client obtain the first adjournment in drunk driving cases or other serious charges. It makes it easier for our law office to obtain our own adjournment later on, if necessary, rather than having the law office call a second time and ask for a second adjournment. We call the court to determine the name of the judge and prosecutor.
We require a great deal of cooperation from our clients. We have our process servers or clients serve the subpoenas on the Division of Motor Vehicles, insurance companies or other entities.
We require our clients to take photographs of accident sites and prepare diagrams and provide us with the names, addresses and telephone numbers of witnesses. Law is a business. I try to impress my clients and hope that they will send additional clients.
II. POST INTERVIEW PREPARATION We also make a Motion to Suppress where there is a question regarding the validity of a stop or search. New Jersey will also permit you to make a Motion to Dismiss on De Minimis Infractions for non-substantial offenses (i.e. shoplifting one candy bar). Any other Motions to Dismiss should be made in writing such as statute of limitations or lack of jurisdiction.
Oftentimes in cases that deal with just one triable issue such as the admissibility of a blood test result regarding alcohol or drugs, you can make a Motion in Limine or suggest a pre-trial conference. It is often a good idea to try to have the judge decide a crucial issue by motion in order to save you a six hour trial. If the court rules against you in the Motion in Limine, you can enter a guilty plea contingent upon reserving your right to appeal on that one issue to an Appellate Court.
III. ADDITIONAL DISCOVERY PHASE In the case involving essential witnesses, we write to the witnesses and ask them to call us so that we can find out what really happened. If possible I have a law clerk call up after we send the initial letter. The attorney could not testify if the witness provides an inconsistent statement but our law clerks could testify. I sometimes speak to the witness myself later to make a decision to determine whether or not the witnesses are credible. You must protect yourself from looking like a fool. Oftentimes the clients are not telling the truth and the witnesses are not telling the truth. Upon receiving discovery, we forward a photocopy of all discovery to our client. We then discuss with the client whether or not we have a reasonable prospect of winning. It is also a good idea to know the prosecutors position on your case.
IV. PREPARING FOR TRIAL If it is a drug case, we may make an objection to the entry of the lab certificate as evidence at trial. We are also under a responsibility to provide any reciprocal discovery to the prosecutor. Occasionally, we will call the prosecutor ahead of time to see if a matter can be worked out or plea bargained.
We prepare a Subpoena ad Testificandum for witnesses to testify and Subpoena Duces Tecum for witnesses to bring documents. We have our clients hand deliver the subpoenas and write out their own check for the subpoena fees. On the day of the trial, I bring a huge brief case containing my equipment for battle: Court Rules, Traffic and Criminal Code, Evidence Book, my case file, and my cumulative folder on the topic of law (i.e. Drunk Driving, Drug Possession, etc.). It is better to be over-prepared than under-prepared.
THE OFFENSE AND ARREST
Police are permitted to arrest if they see a crime or are provided with information that a juvenile committed a crime. The police then sign a Complaint Form, which later is forwarded to the Superior Court, Family Part, in the county where the juvenile lives. Generally, the juvenile will be released to the custody of parents or guardians. Rule 5:21-5. A person is a juvenile for delinquency purposes until his/her 18th birthday. For serious crimes, if the juvenile is a threat to themselves or the community, or if the juvenile is a habitual offender, they can be brought to the County Juvenile Detention Center. They will remain in detention until released by the Superior Court Judge at a recall hearing, after a probable cause hearing or at the conclusion of the case. It is rare and serious when a juvenile is held at the Detention Center.
MIRANDA WARNING AND CONFESSIONS
Police must provide Miranda Warning to juveniles. Parents/guardians do not have to be present for police questioning. If a confession was given and you need to try and preclude the admission of a confession, the issue will be whether the waiver of Miranda Warning was knowing and voluntary by the juvenile. Caselaw indicates both juveniles and even retarded citizens can waive their right to remain silent.
DIVERSION OF CRIMINAL CHARGES
In many counties, the County Prosecutors office screens each complaint initially, but staff within the Family Court can make the decision to divert the case or not. Diversion for many cases means removing them from court altogether and sending them for total handling to a Juvenile Conference Committee (J.C.C.) or intake service conference. See the Criminal Justice System, Guide for School Personnel, Middlesex County Prosecutors Office, p. 20 (1996). The first rung on the diversion ladder is the Juvenile Conference Committee (J.C.C.), which is a town-based group of citizens who work with the juvenile offender to devise an appropriate resolution of the case. Rule 5:25-l. Citizen members are appointed to recommend to the court how to handle selected juvenile cases. Members meet with the juveniles and make recommendations which may include restitution, participation in a job placement or community service program, counseling, or other conditions.
An informal hearing is a case sent to the informal calendar. There is a trial heard by either a Superior Court Judge or a specially designated Municipal Court Judge. This involves a Superior Court appearance. The police are subpoenaed to testify but the County Prosecutor does not prosecute the case. At an informal, no possibility of incarceration exists. If found delinquent (guilty), the judge can either put the juvenile on probation or make a deferred adjudication. The court will impose the condition that if the juvenile stays out of trouble for a specified period of time (six months to a year and a half), the charges will be dismissed. In a deferred adjudication the judge may direct the juvenile to perform a job, write an essay, be on unsupervised probation, or direct other requirements. The juvenile must earn dismissal by fulfilling conditions such as restitution, community service, counseling, or school attendance. For juveniles with prior charges or more serious charges, the case is put on the formal trial calendar. These proceedings resemble adult criminal proceedings. The juvenile must be represented by an attorney and the state is represented by an Assistant Prosecutor.
FORMAL TRIAL If the case goes to trial, the judge serves as the fact-finder and makes all decisions, unlike adult court where those charged can have a jury trial. The trial is held before a Superior Court Judge in the county where the juvenile resides. Rule 5:19-1.
Another major difference in juvenile cases is that the prosecutor does not make binding sentencing recommendations as part of a plea bargain. The judge has total discretion regarding the sentence imposed. If the juvenile pleads guilty or is found delinquent (guilty), the judge has the discretion on sentence - deferred adjudication, probation, incarceration, residential placement, restitution, fine, etc. Criminal Justice System, supra at 21. Relatively few juveniles are currently incarcerated but the number may increase as legislative changes require jail terms for juveniles who commit certain offenses such as auto thefts and for juveniles who continue to commit more and more heinous offenses. For the most serious crimes, the County Prosecutor can make a motion to remove to the Adult Criminal Court. Rule 5:22-1, Rule 5:22-2.
FIRST APPEARANCE IN FORMAL TRIAL CASES
The Court itself will send a copy of the Complaint to the juveniles parents and a Mandatory Notice to Appear for an Interview for Public Defender Eligibility. The Public Defender handles only indigent cases - juveniles whose parents are on welfare, unemployed, and have no assets. This mandatory appearance is unnecessary once the client retains an attorney and the attorney sends in a Notice of Appearance.
THE TRIAL
Interview witnesses to determine if they will be credible and help your client. Serve your subpoenas on witnesses in sufficient time prior to trial. Have your legal research done prior to trial, such as on constructive possession of drugs or stolen property. Over the years I have made it a practice to build up files on particular legal subjects with complete case law. I now have files for drunk driving, driving while suspended, speeding, drug possession, and careless driving. Preparation is the key to winning cases. I often practice an opening statement and argument on a tape recorder in my car and play it back to determine if I have all the facts at my fingertips. Upon arrival at court, we will attempt to ascertain if the police officer is available.
Sometimes the police officer is on vacation, retired, unavailable or suspended and this will assist your ability to work out a satisfactory arrangement for your client.
You also must make sure that your client is prepared and looks neat.
The Grateful Dead and Budweiser T-shirts should be replaced with something that looks presentable. They should wear neat clothes - shirts with collars, dress shoes and pants. Suits or T-shirts should not be worn. There is no prohibition against speaking with States witnesses. Outside of the court room, I usually call out the name of the non-law enforcement States witnesses to determine if they are present and to determine what their version of the facts are. If you know you are going to have a trial, attempt to have the case marked ready hold for an hour later, otherwise you will be sitting around for a long period of time. If you have an excellent trial issue but believe the judge is going to rule against you, bring an appeal notice with you and file it with the Court on the record.
V. PLEA TO A LESSER DEFENSE When your case is called, speak clearly before the court, providing your name and spelling out your name and where you are located. The judges always like to know the names of new or unfamiliar attorneys.
Your name is your future and announcing it also provides free publicity for yourself. The judges and prosecutors want to move the calendar.
However, your obligation is always to your client. Sometimes you have nothing to lose by trying a case. Courts are forbidden from increasing penalties merely because someone excused their constitutional right to a trial.
If your client is going to enter a guilty plea to any offense, it is important that they understand what the offense is and put a factual basis on the record. You will be embarrassed if your client is pleading guilty to a drunk driving case and the judge asked your client what he had to drink, the client insists he only had one beer. The judge will send you back to your seat and must refuse to take the guilty plea unless an adequate factual basis is put on the record. Having previously obtained for my client their favorable background, I usually put on the record reasons why the judge should give them the minimum penalties.
Most states, such as New Jersey have a conditional discharge, pre-trial intervention, or other programs that are available to clients charged with drug offenses who have never previously been arrested or previously been convicted of the drug offense. Again, to avoid embarrassment, it is a good idea to speak with the prosecutor and the police officer because they may have a criminal abstract to indicate that the client is not eligible for a conditional discharge type program. Letters of reference and character reference letters are helpful in cases where the judge has wide discretion in his sentencing. After the client pleads guilty, it is a good idea to also ask the client on the record if he has any questions of myself or of the court.
VI. CONCLUSION Whether or not you have a trial or there is a plea to reduce the charge, you wish to walk out knowing you did the best you could for your client. Even if you lose, you want to have been such an articulate advocate that your client walks out saying my attorney is great but the judge is wrong. Always be innovative and prepare new arguments. Plea bargaining varies from state to state so you must be aware of where it is permitted. You must be able to show your ingenuity and desire to win.
We handle a substantial amount of municipal court and personal injury cases. If you have an overly difficult case and have problems handling it, your client may benefit if the case is referred to a more experienced attorney.
IMPORTANT LAWS MOST JUVENILES DONT KNOW ABOUT
Assault: Any assault committed against any teacher, school board employee, school board member, or school administrator is an aggravated assault. NJSA 2C:12-1 et seq.
Graffiti: Penalties are increased for graffiti, and include drivers license loss for juveniles, P.L. 1995 c. 251. Amends NJSA 2C:17-3 (Criminal mischief and other statutes). In the case of a person who at the time of the imposition of sentence is less than 17 years of age, the period of the suspension of driving privileges authorized herein, including a suspension of the privilege of operating a motorized bicycle, shall commence on the day the sentence is imposed and shall run for a period of one year after the day the person reaches the age of 17 years. If the driving privilege of any person is under revocation, suspension, or postponement for a violation of any provision of this Title or Title 39 of the Revised Statutes at the time of any conviction or adjudication of delinquency for a violation of any offense defined in this section, the revocation, suspension, or postponement period imposed herein shall commence as of the date of termination of the existing revocation, suspension, or postponement. Any person convicted of criminal mischief involving graffiti may be required to pay to the owner monetary restitution and perform community service and remove graffiti.
Drugs: Sample Mandatory Penalties for Juvenile - Possession of Small Amounts of Marijuana: -Suspension of Drivers License: 2C:35-16 Six months to two years from date of sentence. -DEDR Penalty $500 required under NJSA 2C:35-15a. This $500 penalty is required even in juvenile cases, as required by statute. State in Intent of LM 22 NJ Super 88, (App. Div. 88) court denied 114 NJ 485
(1989) -Drug Lab Fee $50 2C:35-20a -VCCB $50 according to 2C:43-3.1a(2)(o) -Safe Streets - Fee due upon conviction, PTI or CD $75

2C:29-2 Resisting Arrest, Eluding Officer

Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey.
2C:29-2. Resisting Arrest; Eluding Officer. a. (1) Except as provided in paragraph (3), a person is guilty of a disorderly persons offense if he purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest. (2) Except as provided in paragraph (3), a person is guilty of a crime of the fourth degree if he, by flight, purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest. (3) An offense under paragraph (1) or (2) of subsection a. is a crime of the third degree if the person:
(a)Uses or threatens to use physical force or violence against the law enforcement officer or another; or
(b)Uses any other means to create a substantial risk of causing physical injury to the public servant or another.
It is not a defense to a prosecution under this subsection that the law enforcement officer was acting unlawfully in making the arrest, provided he was acting under color of his official authority and provided the law enforcement officer announces his intention to arrest prior to the resistance.
b.Any person, while operating a motor vehicle on any street or highway in this State or any vessel, as defined pursuant to section 2 of P.L.1995, c.401 (C.12:7-71), on the waters of this State, who knowingly flees or attempts to elude any police or law enforcement officer after having received any signal from such officer to bring the vehicle or vessel to a full stop commits a crime of the third degree; except that, a person is guilty of a crime of the second degree if the flight or attempt to elude creates a risk of death or injury to any person. For purposes of this subsection, there shall be a permissive inference that the flight or attempt to elude creates a risk of death or injury to any person if the persons conduct involves a violation of chapter 4 of Title 39 or chapter 7 of Title 12 of the Revised Statutes. In addition to the penalty prescribed under this subsection or any other section of law, the court shall order the suspension of that persons drivers license, or privilege to operate a vessel, whichever is appropriate, for a period of not less than six months or more than two years.
In the case of a person who is at the time of the imposition of sentence less than 17 years of age, the period of the suspension of driving privileges authorized herein, including a suspension of the privilege of operating a motorized bicycle, shall commence on the day the sentence is imposed and shall run for a period as fixed by the court. If the driving or vessel operating privilege of any person is under revocation, suspension, or postponement for a violation of any provision of this Title or Title 39 of the Revised Statutes at the time of any conviction or adjudication of delinquency for a violation of any offense defined in this chapter or chapter 36 of this Title, the revocation, suspension, or postponement period imposed herein shall commence as of the date of termination of the existing revocation, suspension, or postponement.
Upon conviction the court shall collect forthwith the New Jersey drivers licenses of the person and forward such license or licenses to the Director of the Division of Motor Vehicles along with a report indicating the first and last day of the suspension or postponement period imposed by the court pursuant to this section. If the court is for any reason unable to collect the license or licenses of the person, the court shall cause a report of the conviction or adjudication of delinquency to be filed with the director. That report shall include the complete name, address, date of birth, eye color, and sex of the person and shall indicate the first and last day of the suspension or postponement period imposed by the court pursuant to this section. The court shall inform the person orally and in writing that if the person is convicted of personally operating a motor vehicle or a vessel, whichever is appropriate, during the period of license suspension or postponement imposed pursuant to this section the person shall, upon conviction, be subject to the penalties set forth in R.S.39:3-40 or section 14 of P.L.1995, c.401 (C.12:7-83), whichever is appropriate. A person shall be required to acknowledge receipt of the written notice in writing. Failure to receive a written notice or failure to acknowledge in writing the receipt of a written notice shall not be a defense to a subsequent charge of violation of R.S.39:3-40 or section 14 of P.L.1995, c.401 (C.12:7-83), whichever is appropriate. If the person is the holder of a drivers or vessel operators license from another jurisdiction, the court shall not collect the license but shall notify the director who shall notify the appropriate officials in the licensing jurisdiction. The court shall, however, in accordance with the provisions of this section, revoke the persons non-resident driving or vessel operating privileges, whichever is appropriate, in this State.
For the purposes of this subsection, it shall be a rebuttable presumption that the owner of a vehicle or vessel was the operator of the vehicle or vessel at the time of the offense.
Amended 1979, c.178, s.57; 1981, c.290, s.28; 1989, c.84; 1991, c.341, s.3; 1993, c.219, s.5; 1995, c.401, s.54; 2000, c.18, s.2.
2C:29-3 Hindering apprehension or prosecution.
2C:29-3. Hindering Apprehension or Prosecution. a.A person commits an offense if, with purpose to hinder the detention, apprehension, investigation, prosecution, conviction or punishment of another for an offense or violation of Title 39 of the New Jersey Statutes or a violation of chapter 33A of Title 17 of the Revised Statutes he:
(1)Harbors or conceals the other;
(2)Provides or aids in providing a weapon, money, transportation, disguise or other means of avoiding discovery or apprehension or effecting escape;
(3)Suppresses, by way of concealment or destruction, any evidence of the crime, or tampers with a witness, informant, document or other source of information, regardless of its admissibility in evidence, which might aid in the discovery or apprehension of such person or in the lodging of a charge against him;
(4)Warns the other of impending discovery or apprehension, except that this paragraph does not apply to a warning given in connection with an effort to bring another into compliance with law;
(5)Prevents or obstructs, by means of force, intimidation or deception, anyone from performing an act which might aid in the discovery or apprehension of such person or in the lodging of a charge against him;
(6)Aids such person to protect or expeditiously profit from an advantage derived from such crime; or
(7)Gives false information to a law enforcement officer or a civil State investigator assigned to the Office of the Insurance Fraud Prosecutor established by section 32 of P.L.1998, c.21 (C.17:33A-16).
The offense is a crime of the third degree if the conduct which the actor knows has been charged or is liable to be charged against the person aided would constitute a crime of the second degree or greater, unless the actor is a spouse, parent or child of the person aided, in which case the offense is a crime of the fourth degree. The offense is a crime of the fourth degree if such conduct would constitute a crime of the third degree. Otherwise it is a disorderly persons offense.
b.A person commits an offense if, with purpose to hinder his own detention, apprehension, investigation, prosecution, conviction or punishment for an offense or violation of Title 39 of the New Jersey Statutes or a violation of chapter 33A of Title 17 of the Revised Statutes, he:
(1)Suppresses, by way of concealment or destruction, any evidence of the crime or tampers with a document or other source of information, regardless of its admissibility in evidence, which might aid in his discovery or apprehension or in the lodging of a charge against him; or
(2)Prevents or obstructs by means of force or intimidation anyone from performing an act which might aid in his discovery or apprehension or in the lodging of a charge against him; or
(3)Prevents or obstructs by means of force, intimidation or deception any witness or informant from providing testimony or information, regardless of its admissibility, which might aid in his discovery or apprehension or in the lodging of a charge against him; or
(4)Gives false information to a law enforcement officer or a civil State investigator assigned to the Office of the Insurance Fraud Prosecutor established by section 32 of P.L.1998, c.21 (C.17:33A-16).
The offense is a crime of the third degree if the conduct which the actor knows has been charged or is liable to be charged against him would constitute a crime of the second degree or greater. The offense is a crime of the fourth degree if such conduct would constitute a crime of the third degree. Otherwise it is a disorderly persons offense.
Amended 1981, c.290, s.29; amended 1999, c.297.
If someone is indicted for the Serious criminal charge of "ELUDING AN OFFICER", the Judge will read portions of the following to the Jury:
(N.J.S.A. 2C:29-2b)
[Second and Third Degree]
The indictment charges the defendant with committing the crime of eluding an officer. The indictment reads as follows:
(Read Indictment)
The statute on which this charge is based reads as follows:
Any person, while operating a motor vehicle on any street or highway in this State, who knowingly flees or attempts to elude any police or law enforcement officer after having received any signal from such officer to bring the vehicle to a full stop commits a crime of the third degree.
[CHARGE FOLLOWING SENTENCE IF SUBMITTING BOTH
SECOND AND THIRD DEGREE]
[That person] is guilty of a crime of the second degree if the flight or attempt to elude creates a risk of death or injury to any person.
[CHARGE FOLLOWING SENTENCE IF SUBMITTING BOTH SECOND AND THIRD DEGREE]
[I will ask you to consider both third degree and second degree eluding, and will begin by defining third degree.] In order to convict the defendant of third degree eluding, the state must prove beyond a reasonable doubt each of the following six (6) elements: 1. That was operating a motor vehicle on a street or highway in this state. 2. That was a police or law enforcement officer. 3. That signaled to bring the vehicle to a full stop. 4. That knew that the officer had signaled (him/her) to bring the vehicle to a full stop. 5. That knew that was a police or law enforcement officer. 6. That defendant knowingly fled or attempted to elude the officer.
If you find that was the owner of the vehicle, you may infer that (he/she) was operating that vehicle at the time of the offense. However, you are never required or compelled to draw this inference. It is your exclusive province to determine whether the facts and circumstances shown by the evidence support any inference and you are always free to accept them or reject them if you wish.
Mere failure to stop does not constitute flight. To find flight, you must find that the defendants purpose in leaving was to avoid being stopped by the officer. A person attempts to perform an act if (he/she) does or omits to do anything with the purpose of performing that act without further conduct on (his/her) part, or purposely does or omits to do anything which, under the circumstances as a reasonable person would believe them to be, is an act or omission constituting a substantial step planned to culminate in the performance of that act. A person acts purposely with respect to the nature of (his/her) conduct or a result thereof if it is (his/her) conscious object to engage in conduct of that nature or to cause such a result. A person acts knowingly with respect to the attendant circumstances of his/her conduct if he/she is aware that such circumstances exist, or is aware of a high probability of their existence. "Knowing" or "with knowledge" or equivalent terms have the same meaning. If you find that the State has failed to prove any one of these elements beyond a reasonable doubt you must find the defendant not guilty. [CHARGE FOLLOWING SENTENCE IF SUBMITTING ONLY THIRD DEGREE] On the other hand, if you find that the State has proven all of these elements beyond a reasonable doubt, you must find the defendant guilty. [CHARGE REMAINING PARAGRAPHS IF SUBMITTING SECOND DEGREE] If you find that the State has proven all six of the above elements beyond a reasonable doubt, you must go on in your deliberations to consider a seventh element, which will distinguish third-degree eluding from the greater offense of second-degree eluding. The State must prove beyond a reasonable doubt: 7. That the flight or attempt to elude created a risk of death or injury to any person. "Injury" means physical pain, illness, or any impairment of physical condition.1 In order to find this element, you must determine that there was at least one person put at risk by the defendants conduct, including persons along the chase route, police officers in the chasing vehicle, or persons in the eluding vehicle.2
[CHARGE IF APPLICABLE:]3
You may infer risk of death or injury to any person if the defendants conduct in fleeing or in attempting to elude the officer involved a violation of the motor vehicle law of this State [OR: the law regulating power vessels]. It is alleged that defendants conduct involved [a] violation[s] of the motor vehicle law [OR: the law regulating power vessels]. Specifically, it is alleged that defendant [list motor vehicle violations or power vessel violations alleged, and list their elements, taking care to list only those violations that allegedly occurred after the signal to stop]. Whether (he/she) is guilty or not guilty of that [those] offense[s] will be determined by an appropriate court.4In other words, it is not your job to decide whether (he/she) is guilty or not guilty of the motor vehicle [OR: power vessel] offense[s]. However, you may consider the evidence that (he/she) committed [a] motor vehicle offense[s] [OR: power vessel offense[s] ] in deciding whether (he/she) created a risk of death or injury. At the same time, remember that you are never required or compelled to draw this inference. As I have already explained, it is your exclusive province to determine whether the facts and circumstances shown by the evidence support any inference and you are always free to accept or reject any inference if you wish. If you find that the State has proven beyond a reasonable doubt all seven elements of the offense, then you must find the defendant guilty of the second degree crime of eluding an officer. On the other hand, if you find that the State has failed to prove the seventh element beyond a reasonable doubt, but has proven the first six elements beyond a reasonable doubt, then you must find the defendant not guilty of second degree eluding and guilty of third degree eluding. Finally, if you find that the State has failed to prove any of the first six elements beyond a reasonable doubt, then you must find the defendant not guilty of either crime.
1 State v. Wallace, 158 N.J. 552, 558 (1999), holds that the term "injury" should be defined for the jury, using the Code definition of "bodily injury," N.J.S.A. 2C:11-1a. Property damage, psychological injury, or other nonphysical injury do not satisfy the statutory requirement. Id.
2 Wallace, 158 N.J. at 560.
3 Only violations of Chapter 4 of Title 39 (motor vehicles) or Chapter 7 of Title 12 (power vessels) will support this statutory inference. However, not all such violations will support the inference, and it should not be submitted where no reasonable juror on the evidence as a whole, including the evidence of the motor vehicle or power vessel violation, could find a risk of death or injury to any person beyond a reasonable doubt. N.J.R.E. 303b; State v. DiRienzo, 53 N.J. 360, 378 (1969).
4 Because it is inappropriate to submit to a jury a lesser motor-vehicle offense related to an indictable prosecution properly before them, State v. Muniz, 118 N.J. 319, 331-32 (1990), the jury should be instructed, if appropriate, that any outstanding motor vehicle charge will be determined by an appropriate court. At the same time, the failure to explain, in appropriate circumstances, the elements of the motor vehicle offenses that form the basis for the statutory inference of recklessness, so that the jury can make an accurate determination whether the defendants conduct "created the danger of death or injury," is reversible error. State v. Dorko, 298 N.J. Super. at 59-60. Accordingly, the court should explain the elements of the applicable motor vehicle offenses to the jury, but inform them that the defendants guilt or innocence of those offenses will be determined by an appropriate court. The jury should be instructed not to speculate as to whether any such charges have been filed or disposed of. The same principles would appear to apply if a power vessel offense, rather than a motor vehicle offense, is alleged as the basis for the statutory inference.
Consequences of a Criminal Guilty Plea
1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s)
2. Do you understand that if you plead guilty:

a. You will have a criminal record
b. You may go to Jail or Prison.
c. You will have to pay Fines and Court Costs.

3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail.
4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing.
5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution.
6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.
7. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.
8. You must wait 5-10 years to expunge a first offense. 2C:52-3
9. You could be put on Probation.
10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your drivers license for 6 months - 2years. You must pay a Law Enforcement Officers Training and Equipment Fund penalty of $30.
11. You may be required to do Community Service.
12. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty.
13. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction.
14. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation.
15. You lose the presumption against incarceration in future cases. 2C:44-1
16. You may lose your right to vote.
The defense of a person charged with a criminal offense is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of a criminal offense.
Jail for Crimes and Disorderly Conduct:
If someone pleads Guilty or is found Guilty of a criminal offense, the following is the statutory Prison/Jail terms.
NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years;
(2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years;
(3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years;
(4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months.
2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed:
a. (1) $200,000.00 when the conviction is of a crime of the first degree;
(2) $150,000.00 when the conviction is of a crime of the second degree;
b. (1) $15,000.00 when the conviction is of a crime of the third degree;
(2) $10,000.00 when the conviction is of a crime of the fourth degree;
c. $1,000.00, when the conviction is of a disorderly persons offense;
d. $500.00, when the conviction is of a petty disorderly persons offense;
If facing any criminal charge, retain an experienced attorney immediately to determine you rights and obligations to the court. Current criminal charge researched by Kenneth Vercammen, Esq. 732-572-0500

2C:48-8 Jail for Crimes and Disorderly Conduct

Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey.
If someone pleads Guilty or is found Guilty of a criminal offense, the following is the statutory Prison/Jail terms.
NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years;
(2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years;
(3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years;
(4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months.
2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed:
a. (1) $200,000.00 when the conviction is of a crime of the first degree;
(2) $150,000.00 when the conviction is of a crime of the second degree;
b. (1) $15,000.00 when the conviction is of a crime of the third degree;
(2) $10,000.00 when the conviction is of a crime of the fourth degree;
c. $1,000.00, when the conviction is of a disorderly persons offense;
d. $500.00, when the conviction is of a petty disorderly persons offense;
If facing any criminal charge, retain an experienced attorney immediately to determine you rights and obligations to the court. Current criminal charge researched by Kenneth Vercammen, Esq. 732-572-0500
Consequences of a Criminal Guilty Plea:
1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s)
2. Do you understand that if you plead guilty:

a. You will have a criminal record
b. You may go to Jail or Prison.
c. You will have to pay Fines and Court Costs.

Restraining Orders in Domestic Violence Cases

Kenneth Vercammens Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey.
RESTRAINING ORDERS in DOMESTIC VIOLENCE CASES

by Kenneth A. Vercammen, Esq.

New Jersey domestic violence laws are very strict. If there are any signs of physical injuries the police must arrest the abuser. Even without independent witnesses and no physical injuries, police may arrest the abuser. Domestic Violence is a crime under the law, and the police must respond to the calls of victims. The police are required to give the victim information about their rights and to help them. Among other things, police must write up a report. For example, O.J. Simpson would not have gotten away with abuse in New Jersey. Police are automatically required to arrest an abuser if they see any evidence of abuse or assault. Even during the evening, your town Municipal Court or Superior Court can issue a civil restraining order which is a legally enforceable document. The temporary restraining order will prohibit the defendant/abuser from harassing you or entering your residence. Unlike a criminal case where a person is provided with lengthy due process, and if guilty receives probation and a monetary fine, a domestic violence hearing allows judges to issue far reaching orders. A domestic violence hearing is usually held within only ten (10) days of the filing of an ex parte complaint and temporary restraining order. After a hearing , NJSA 2C:25-29 (b) allows the Chancery Division, Family Part Judge to grant substantial relief to the complainant. Among the relief the Court may gives is:

(1) An order restraining the defendant from subjecting the victim to domestic violence, as defined in this act.

(3) An order providing for visitation...[ meaning the complainant obtains custody]

(4) An order requiring the defendant to pay to the victim monetary compensation for losses suffered as a direct result of the act of domestic violence...

(6) An order restraining the defendant from entering the residence, property, school, or place of employment of the victim or of other family or household members of the victim...

(7) An order restraining the defendant from making any communication likely to cause annoyance or alarm...

(9) An order granting either party temporary possession of specified personal property, such as an automobile, checkbook, documentation of health insurance, any identification documents, a key, and other personal effects.

(10) An order awarding emergent monetary relief to the victim and other dependents, if any. An ongoing obligation of support shall be determined at a later date pursuant to applicable law...Â²

(11) An Order awarding temporary custody of a minor child. The court shall presume that the best interests of the child shall be served by an award of custody to the non- abusive parent.

(12) An Order requiring that a law enforcement officer accompany either party to the residence to supervise the removal of personal belongings.

(13) An Order granting any other appropriate relief for the plaintiff and minor children

(14) An Order that the defendant report to the intake office of the Family Part for monitoring

(15) An Order prohibiting the defendant from possessing any firearm or weapon

Caselaw protects victims. In Pepe v Pepe, 258 N.J. Super. 157 (Chan. Div. 1992) held that the confidentiality provision of record keeping under the Domestic Violence act applies to the records kept on file with the Clerk of the Superior Court.The court held that in determining whether or not a statutory imposed confidential record should be made public, the court must consider whether the release of the documents will be harmful to the victim, whether adverse publicity will be a factor and whether access to court records will discourage the victim from coming forward.Despite the substantial financial burden and life restrictions (often referred to as penalties), the burden of proof in a DOMESTIC VIOLENCE hearing is only Â³by a preponderance of evidence.Â² Hopefully, parties will put best interests of children ahead of short term animosity. Financial limitations often limit the family ability to become involved in lengthy divorce and custody battles.

A DOMESTIC VIOLENCE complaint can be withdrawn. For additional information, speak with an attorney experienced in handling Domestic Violence matters. The following is the NJ Court Rule on Restraining Orders; Court Rule 5:7A. DOMESTIC VIOLENCE: RESTRAINING ORDERS (a) Application for Temporary Restraining Order except as provided in paragraph (b) herein, an applicant for a temporary restraining order shall appear before a judge personally to testify upon the record or by sworn complaint submitted pursuant to N.J.S.A. 2C:25-28. If it appears that the applicant is in danger of domestic violence, the judge shall, upon consideration of the applicants domestic violence affidavit, complaint or testimony, order emergency relief including ex parte relief, in the nature of a temporary restraining order as authorized by N.J.S.A. 2C:25-17 et seq. (b) Issuance of Temporary Restraining Order by Electronic Communication. A judge may issue a temporary restraining order upon sworn oral testimony of an applicant who is not physically present. Such sworn oral testimony may be communicated to the judge by telephone, radio or other means of electronic communication. The judge or law enforcement officer assisting the applicant shall contemporaneously record such sworn oral testimony by means of a tape-recording device or stenographic machine if such are available; otherwise, adequate long hand notes summarizing what is said shall be made by the judge. Subsequent to taking the oath, the applicant must identify himself or herself, specify the purpose of the request and disclose the basis of the application. This sworn testimony shall be deemed to be an affidavit for the purposes of issuance of a temporary restraining order. A temporary restraining order may issue if the judge is satisfied that exigent circumstances exist sufficient to excuse the failure of the applicant to appear personally and that sufficient grounds for granting the application have been shown. Upon issuance of the temporary restraining order, the judge shall memorialize the specific terms of the order and shall direct the law enforcement officer assisting the applicant to enter the judges authorization verbatim on a form, or other appropriate paper, designated the duplicate original temporary restraining order. This order shall be deemed a temporary restraining order for the purpose of N.J.S.A. 2C:25-28. The judge shall direct the law enforcement officer assisting applicant to print the judges name on the temporary restraining order. The judge shall also contemporaneously record factual determinations. Contemporaneously the judge shall issue a written confirmatory order and shall enter thereon the exact time of issuance of the duplicate order. In all other respects, the method of issuance and contents of the order shall be that required by sub-section (a) of this rule. (c) Temporary Restraining Order. In court proceedings instituted under the Prevention of Domestic Violence Act of 1990, the judge shall issue a temporary restraining order when the applicant appears to be in danger of domestic violence. The order may be issued ex parte when necessary to protect the life, health, or well-being of a victim on whose behalf the relief is sought. (d) Final Restraining Order. A final order restraining a defendant shall be issued only on a specific finding of domestic violence or on a stipulation by a defendant to the commission of an act or acts of domestic violence as defined by the statute. (e) Procedure Upon Arrest Without a Warrant. Whenever a law enforcement officer has effected an arrest without a warrant on a criminal complaint brought for a violation otherwise defined as an offense under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 et seq., bail may be set and a complaint-warrant may be issued pursuant to the procedures prescribed in R 3:4-1(b). (f) Venue in Domestic Violence Proceedings. Venue in domestic violence actions shall be laid in the county where either of the parties resides, in the county where the domestic violence offense took place, or in the county where the victim of domestic violence is sheltered. If the action is not brought in a county of residence, venue shall be transferred to a county of residence for the final hearing unless the court orders the matter retained in the county where the complaint is filed for good cause shown. The following is the NJ Statute on Restraining Orders and Domestic Violence Matters 2C:25-17. Short title 1. This act shall be known and may be cited as the Prevention of Domestic Violence Act of 1991. 2C:25-18. Findings, declarations 2. The Legislature finds and declares that domestic violence is a serious crime against society; that there are thousands of persons in this State who are regularly beaten, tortured and in some cases even killed by their spouses or cohabitants; that a significant number of women who are assaulted are pregnant; that victims of domestic violence come from all social and economic backgrounds and ethnic groups; that there is a positive correlation between spousal abuse and child abuse; and that children, even when they are not themselves physically assaulted, suffer deep and lasting emotional effects from exposure to domestic violence. It is therefore, the intent of the Legislature to assure the victims of domestic violence the maximum protection from abuse the law can provide. The Legislature further finds and declares that the health and welfare of some of its most vulnerable citizens, the elderly and disabled, are at risk because of incidents of reported and unreported domestic violence, abuse and neglect which are known to include acts which victimize the elderly and disabled emotionally, psychologically, physically and financially; because of age, disabilities or infirmities, this group of citizens frequently must rely on the aid and support of others; while the institutionalized elderly are protected under P.L. 1977, c.239 (C. 52:27G-1 et seq.), elderly and disabled adults in non institutionalized or community settings may find themselves victimized by family members or others upon whom they feel compelled to depend. The Legislature further finds and declares that violence against the elderly and disabled, including criminal neglect of the elderly and disabled under section 1 of P.L. 1989, c.23 (C. 2C:24-8), must be recognized and addressed on an equal basis as violence against spouses and children in order to fulfill our responsibility as a society to protect those who are less able to protect themselves. The Legislature further finds and declares that even though many of the existing criminal statutes are applicable to acts of domestic violence, previous societal attitudes concerning domestic violence have affected the response of our law enforcement and judicial systems, resulting in these acts receiving different treatment from similar crimes when they occur in a domestic context. The Legislature finds that battered adults presently experience substantial difficulty in gaining access to protection from the judicial system, particularly due to that systems inability to generate a prompt response in an emergency situation. It is the intent of the Legislature to stress that the primary duty of a law enforcement officer when responding to a domestic violence call is to enforce the laws allegedly violated and to protect the victim. Further, it is the responsibility of the courts to protect victims of violence that occurs in a family or family-like setting by providing access to both emergent and long-term civil and criminal remedies and sanctions, and by ordering those remedies and sanctions that are available to assure the safety of the victims and the public. To that end, the Legislature encourages the training of all police and judicial personnel in the procedures and enforcement of this act, and about the social and psychological context in which domestic violence occurs; and it further encourages the broad application of the remedies available under this act in the civil and criminal courts of this State. It is further intended that the official response to domestic violence shall communicate the attitude that violent behavior will not be excused or tolerated, and shall make clear the fact that the existing criminal laws and civil remedies created under this act will be enforced without regard to the fact that the violence grows out of a domestic situation. 2C:25-21.1 Rules, regulations concerning weapons prohibitions and domestic violence. The Attorney General may adopt, pursuant to the Administrative Procedure Act, P.L. 1968, c.410 (C. 52:14B-1 et seq.), rules and regulations necessary and appropriate to implement this act.

2C:25-22. Immunity from civil liability A law enforcement officer or a member of a domestic crisis team or any person who, in good faith, reports a possible incident of domestic violence to the police shall not be held liable in any civil action brought by any party for an arrest based on probable cause, enforcement in good faith of a court order, or any other act or omission in good faith under this act.

2C:25-23. Dissemination of notice to victim of domestic violence 7. A law enforcement officer shall disseminate and explain to the victim the following notice, which shall be written in both English and Spanish: You have the right to go to court to get an order called a temporary restraining order, also called a TRO, which may protect you from more abuse by your attacker. The officer who handed you this card can tell you how to get a TRO. The kinds of things a judge can order in a TRO may include: (1) That your attacker is temporarily forbidden from entering the home you live in;

(2) That your attacker is temporarily forbidden from having contact with you or your relatives;

(3) That your attacker is temporarily forbidden from bothering you at work;

(4) That your attacker has to pay temporary child support or support for you;

(5) That you be given temporary custody of your children;

(6) That your attacker pay you back any money you have to spend for medical treatment or repairs because of the violence. There are other things the court can order, and the court clerk will explain the procedure to you and will help you fill out the papers for a TRO.

You also have the right to file a criminal complaint against your attacker. The police officer who gave you this paper will tell you how to file a criminal complaint. On weekends, holidays and other times when the courts are closed, you still have a right to get a TRO. The police officer who gave you this paper can help you get in touch with a judge who can give you a TRO. 2C:25-24 Domestic violence offense reports. 8.

a. It shall be the duty of a law enforcement officer who responds to a domestic violence call to complete a domestic violence offense report. All information contained in the domestic violence offense report shall be forwarded to the appropriate county bureau of identification and to the State bureau of records and identification in the Division of State Police in the Department of Law and Public Safety. A copy of the domestic violence offense report shall be forwarded to the municipal court where the offense was committed unless the case has been transferred to the Superior Court. b. The domestic violence offense report shall be on a form prescribed by the supervisor of the State bureau of records and identification which shall include, but not be limited to, the following information:

(1)The relationship of the parties;

(2)The sex of the parties;

(3)The time and date of the incident;

(4)The number of domestic violence calls investigated;

(5)Whether children were involved, or whether the alleged act of domestic violence had been committed in the presence of children;

(6)The type and extent of abuse;

(7)The number and type of weapons involved;

(8)The action taken by the law enforcement officer;

(9)The existence of any prior court orders issued pursuant to this act concerning the parties;

(10) The number of domestic violence calls alleging a violation of a domestic violence restraining order;

(11) The number of arrests for a violation of a domestic violence order; and

(12) Any other data that may be necessary for a complete analysis of all circumstances leading to the alleged incident of domestic violence. c. It shall be the duty of the Superintendent of the State Police with the assistance of the Division of Systems and Communications in the Department of Law and Public Safety to compile and report annually to the Governor, the Legislature and the Advisory Council on Domestic Violence on the tabulated data from the domestic violence offense reports, classified by county 2C:25-25. Criminal complaints; proceedings 9. The court in a criminal complaint arising from a domestic violence incident: a. Shall not dismiss any charge or delay disposition of a case because of concurrent dissolution of a marriage, other civil proceedings, or because the victim has left the residence to avoid further incidents of domestic violence; b. Shall not require proof that either party is seeking a dissolution of a marriage prior to institution of criminal proceedings; c. Shall waive any requirement that the victims location be disclosed to any person.

2C:25-26 Release of defendant before trial; conditions. 10. a. When a defendant charged with a crime or offense involving domestic violence is released from custody before trial on bail or personal recognizance, the court authorizing the release may as a condition of release issue an order prohibiting the defendant from having any contact with the victim including, but not limited to, restraining the defendant from entering the victims residence, place of employment or business, or school, and from harassing or stalking the victim or victims relatives in any way. The court may enter an order prohibiting the defendant from possessing any firearm or other weapon enumerated in subsection r. of N.J.S. 2C:39-1 and ordering the search for and seizure of any such weapon at any location where the judge has reasonable cause to believe the weapon is located. The judge shall state with specificity the reasons for and scope of the search and seizure authorized by the order. b. The written court order releasing the defendant shall contain the courts directives specifically restricting the defendants ability to have contact with the victim or the victims friends, co-workers or relatives. The clerk of the court or other person designated by the court shall provide a copy of this order to the victim forthwith. c. The victims location shall remain confidential and shall not appear on any documents or records to which the defendant has access. d. Before bail is set, the defendants prior record shall be considered by the court. The court shall also conduct a search of the domestic violence central registry. Bail shall be set as soon as it is feasible, but in all cases within 24 hours of arrest. e. Once bail is set it shall not be reduced without prior notice to the county prosecutor and the victim. Bail shall not be reduced by a judge other than the judge who originally ordered bail, unless the reasons for the amount of the original bail are available to the judge who reduces the bail and are set forth in the record. f. A victim shall not be prohibited from applying for, and a court shall not be prohibited from issuing, temporary restraints pursuant to this act because the victim has charged any person with commission of a criminal act.

2C:25-26.1. Notification of victim of release of defendant 1. Notwithstanding any other provision of law to the contrary, whenever a defendant charged with a crime or an offense involving domestic violence is released from custody the prosecuting agency shall notify the victim.

2C:25-27 Conditions of sentencing of defendant found guilty of domestic violence. 11. When a defendant is found guilty of a crime or offense involving domestic violence and a condition of sentence restricts the defendants ability to have contact with the victim, that condition shall be recorded in an order of the court and a written copy of that order shall be provided to the victim by the clerk of the court or other person designated by the court. In addition to restricting a defendants ability to have contact with the victim, the court may require the defendant to receive professional counseling from either a private source or a source appointed by the court, and if the court so orders, the court shall require the defendant to provide documentation of attendance at the professional counseling. In any case where the court order contains a requirement that the defendant receive professional counseling, no application by the defendant to dissolve the restraining order shall be granted unless, in addition to any other provisions required by law or conditions ordered by the court, the defendant has completed all required attendance at such counseling.

2C:25-28 Filing complaint alleging domestic violence in Family Part; proceedings. 12. a. A victim may file a complaint alleging the commission of an act of domestic violence with the Family Part of the Chancery Division of the Superior Court in conformity with the Rules of Court. The court shall not dismiss any complaint or delay disposition of a case because the victim has left the residence to avoid further incidents of domestic violence. Filing a complaint pursuant to this section shall not prevent the filing of a criminal complaint for the same act. On weekends, holidays and other times when the court is closed, a victim may file a complaint before a judge of the Family Part of the Chancery Division of the Superior Court or a municipal court judge who shall be assigned to accept complaints and issue emergency, ex parte relief in the form of temporary restraining orders pursuant to this act. A plaintiff may apply for relief under this section in a court having jurisdiction over the place where the alleged act of domestic violence occurred, where the defendant resides, or where the plaintiff resides or is sheltered, and the court shall follow the same procedures applicable to other emergency applications. Criminal complaints filed pursuant to this act shall be investigated and prosecuted in the jurisdiction where the offense is alleged to have occurred. Contempt complaints filed pursuant to N.J.S. 2C:29-9 shall be prosecuted in the county where the contempt is alleged to have been committed and a copy of the contempt complaint shall be forwarded to the court that issued the order alleged to have been violated. b. The court shall waive any requirement that the petitioners place of residence appear on the complaint. c. The clerk of the court, or other person designated by the court, shall assist the parties in completing any forms necessary for the filing of a summons, complaint, answer or other pleading. d. Summons and complaint forms shall be readily available at the clerks office, at the municipal courts and at municipal and State police stations. e. As soon as the domestic violence complaint is filed, both the victim and the abuser shall be advised of any programs or services available for advice and counseling. f. A plaintiff may seek emergency, ex parte relief in the nature of a temporary restraining order. A municipal court judge or a judge of the Family Part of the Chancery Division of the Superior Court may enter an ex parte order when necessary to protect the life, health or well-being of a victim on whose behalf the relief is sought. g. If it appears that the plaintiff is in danger of domestic violence, the judge shall, upon consideration of the plaintiffs domestic violence complaint, order emergency ex parte relief, in the nature of a temporary restraining order. A decision shall be made by the judge regarding the emergency relief forthwith. h. A judge may issue a temporary restraining order upon sworn testimony or complaint of an applicant who is not physically present, pursuant to court rules, or by a person who represents a person who is physically or mentally incapable of filing personally. A temporary restraining order may be issued if the judge is satisfied that exigent circumstances exist sufficient to excuse the failure of the applicant to appear personally and that sufficient grounds for granting the application have been shown. i. An order for emergency, ex parte relief shall be granted upon good cause shown and shall remain in effect until a judge of the Family Part issues a further order. Any temporary order hereunder is immediately appealable for a plenary hearing de novo not on the record before any judge of the Family Part of the county in which the plaintiff resides or is sheltered if that judge issued the temporary order or has access to the reasons for the issuance of the temporary order and sets forth in the record the reasons for the modification or dissolution. The denial of a temporary restraining order by a municipal court judge and subsequent administrative dismissal of the complaint shall not bar the victim from refiling a complaint in the Family Part based on the same incident and receiving an emergency, ex parte hearing de novo not on the record before a Family Part judge, and every denial of relief by a municipal court judge shall so state. j. Emergency relief may include forbidding the defendant from returning to the scene of the domestic violence, forbidding the defendant from possessing any firearm or other weapon enumerated in subsection r. of N.J.S. 2C:39-1, ordering the search for and seizure of any such weapon at any location where the judge has reasonable cause to believe the weapon is located and the seizure of any firearms purchaser identification card or permit to purchase a handgun issued to the defendant and any other appropriate relief. The judge shall state with specificity the reasons for and scope of the search and seizure authorized by the order. The provisions of this subsection prohibiting a defendant from possessing a firearm or other weapon shall not apply to any law enforcement officer while actually on duty, or to any member of the Armed Forces of the United States or member of the National Guard while actually on duty or traveling to or from an authorized place of duty. k. The judge may permit the defendant to return to the scene of the domestic violence to pick up personal belongings and effects but shall, in the order granting relief, restrict the time and duration of such permission and provide for police supervision of such visit. l. An order granting emergency relief, together with the complaint or complaints, shall immediately be forwarded to the appropriate law enforcement agency for service on the defendant, and to the police of the municipality in which the plaintiff resides or is sheltered, and shall immediately be served upon the defendant by the police, except that an order issued during regular court hours may be forwarded to the sheriff for immediate service upon the defendant in accordance with the Rules of Court. If personal service cannot be effected upon the defendant, the court may order other appropriate substituted service. At no time shall the plaintiff be asked or required to serve any order on the defendant. m.(Deleted by amendment, P.L. 1994, c.94.) n. Notice of temporary restraining orders issued pursuant to this section shall be sent by the clerk of the court or other person designated by the court to the appropriate chiefs of police, members of the State Police and any other appropriate law enforcement agency or court. o.(Deleted by amendment, P.L. 1994, c.94.) p. Any temporary or permanent restraining order issued pursuant to this act shall be in effect throughout the State, and shall be enforced by all law enforcement officers. q. Prior to the issuance of any temporary or permanent restraining order issued pursuant to this section, the court shall order that a search be made of the domestic violence central registry with regard to the defendants record.

2C:25-28.1. In-house restraining order prohibited 2. Notwithstanding any provision of P.L. 1991, c.261 (C. 2C:25-17 et seq.) to the contrary, no order issued by the Family Part of the Chancery Division of the Superior Court pursuant to section 12 or section 13 of P.L. 1991, c.261 (C. 2C:25-28 or 2C:25-29) regarding emergency, temporary or final relief shall include an in-house restraining order which permits the victim and the defendant to occupy the same premises but limits the defendants use of that premises.

2C:25-29 Hearing procedure; relief. 13. a. A hearing shall be held in the Family Part of the Chancery Division of the Superior Court within 10 days of the filing of a complaint pursuant to section 12 of P.L. 1991, c.261 (C. 2C:25-28) in the county where the ex parte restraints were ordered, unless good cause is shown for the hearing to be held elsewhere. A copy of the complaint shall be served on the defendant in conformity with the Rules of Court. If a criminal complaint arising out of the same incident which is the subject matter of a complaint brought under P.L. 1981, c.426 (C. 2C:25-1 et seq.) or P.L. 1991, c.261 (C. 2C:25-17 et seq.) has been filed, testimony given by the plaintiff or defendant in the domestic violence matter shall not be used in the simultaneous or subsequent criminal proceeding against the defendant, other than domestic violence contempt matters and where it would otherwise be admissible hearsay under the rules of evidence that govern where a party is unavailable. At the hearing the standard for proving the allegations in the complaint shall be by a preponderance of the evidence. The court shall consider but not be limited to the following factors:

(1)The previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse;

(2)The existence of immediate danger to person or property;

(3)The financial circumstances of the plaintiff and defendant;

(4)The best interests of the victim and any child;

(5)In determining custody and parenting time the protection of the victims safety; and

(6)The existence of a verifiable order of protection from another jurisdiction. An order issued under this act shall only restrain or provide damages payable from a person against whom a complaint has been filed under this act and only after a finding or an admission is made that an act of domestic violence was committed by that person. The issue of whether or not a violation of this act occurred, including an act of contempt under this act, shall not be subject to mediation or negotiation in any form. In addition, where a temporary or final order has been issued pursuant to this act, no party shall be ordered to participate in mediation on the issue of custody or parenting time.

b. In proceedings in which complaints for restraining orders have been filed, the court shall grant any relief necessary to prevent further abuse. In addition to any other provisions, any restraining order issued by the court shall bar the defendant from purchasing, owning, possessing or controlling a firearm and from receiving or retaining a firearms purchaser identification card or permit to purchase a handgun pursuant to N.J.S. 2C:58-3 during the period in which the restraining order is in effect or two years whichever is greater, except that this provision shall not apply to any law enforcement officer while actually on duty, or to any member of the Armed Forces of the United States or member of the National Guard while actually on duty or traveling to or from an authorized place of duty. At the hearing the judge of the Family Part of the Chancery Division of the Superior Court may issue an order granting any or all of the following relief:

(1) An order restraining the defendant from subjecting the victim to domestic violence, as defined in this act.

(2) An order granting exclusive possession to the plaintiff of the residence or household regardless of whether the residence or household is jointly or solely owned by the parties or jointly or solely leased by the parties. This order shall not in any manner affect title or interest to any real property held by either party or both jointly. If it is not possible for the victim to remain in the residence, the court may order the defendant to pay the victims rent at a residence other than the one previously shared by the parties if the defendant is found to have a duty to support the victim and the victim requires alternative housing.

(3) An order providing for parenting time. The order shall protect the safety and well-being of the plaintiff and minor children and shall specify the place and frequency of parenting time. Parenting time arrangements shall not compromise any other remedy provided by the court by requiring or encouraging contact between the plaintiff and defendant. Orders for parenting time may include a designation of a place of parenting time away from the plaintiff, the participation of a third party, or supervised parenting time. (a) The court shall consider a request by a custodial parent who has been subjected to domestic violence by a person with parenting time rights to a child in the parents custody for an investigation or evaluation by the appropriate agency to assess the risk of harm to the child prior to the entry of a parenting time order. Any denial of such a request must be on the record and shall only be made if the judge finds the request to be arbitrary or capricious. (b) The court shall consider suspension of the parenting time order and hold an emergency hearing upon an application made by the plaintiff certifying under oath that the defendants access to the child pursuant to the parenting time order has threatened the safety and well-being of the child.

(4) An order requiring the defendant to pay to the victim monetary compensation for losses suffered as a direct result of the act of domestic violence. The order may require the defendant to pay the victim directly, to reimburse the Victims of Crime Compensation Board for any and all compensation paid by the Victims of Crime Compensation Board directly to or on behalf of the victim, and may require that the defendant reimburse any parties that may have compensated the victim, as the court may determine. Compensatory losses shall include, but not be limited to, loss of earnings or other support, including child or spousal support, out-of-pocket losses for injuries sustained, cost of repair or replacement of real or personal property damaged or destroyed or taken by the defendant, cost of counseling for the victim, moving or other travel expenses, reasonable attorneys fees, court costs, and compensation for pain and suffering. Where appropriate, punitive damages may be awarded in addition to compensatory damages.

(5) An order requiring the defendant to receive professional domestic violence counseling from either a private source or a source appointed by the court and, in that event, requiring the defendant to provide the court at specified intervals with documentation of attendance at the professional counseling. The court may order the defendant to pay for the professional counseling. No application by the defendant to dissolve a final order which contains a requirement for attendance at professional counseling pursuant to this paragraph shall be granted by the court unless, in addition to any other provisions required by law or conditions ordered by the court, the defendant has completed all required attendance at such counseling.

(6) An order restraining the defendant from entering the residence, property, school, or place of employment of the victim or of other family or household members of the victim and requiring the defendant to stay away from any specified place that is named in the order and is frequented regularly by the victim or other family or household members.

(7) An order restraining the defendant from making contact with the plaintiff or others, including an order forbidding the defendant from personally or through an agent initiating any communication likely to cause annoyance or alarm including, but not limited to, personal, written, or telephone contact with the victim or other family members, or their employers, employees, or fellow workers, or others with whom communication would be likely to cause annoyance or alarm to the victim.

(8) An order requiring that the defendant make or continue to make rent or mortgage payments on the residence occupied by the victim if the defendant is found to have a duty to support the victim or other dependent household members; provided that this issue has not been resolved or is not being litigated between the parties in another action.

(9) An order granting either party temporary possession of specified personal property, such as an automobile, checkbook, documentation of health insurance, an identification document, a key, and other personal effects.

(10) An order awarding emergency monetary relief, including emergency support for minor children, to the victim and other dependents, if any. An ongoing obligation of support shall be determined at a later date pursuant to applicable law.

(11) An order awarding temporary custody of a minor child. The court shall presume that the best interests of the child are served by an award of custody to the non-abusive parent.

(12) An order requiring that a law enforcement officer accompany either party to the residence or any shared business premises to supervise the removal of personal belongings in order to ensure the personal safety of the plaintiff when a restraining order has been issued. This order shall be restricted in duration.

(13) (Deleted by amendment, P.L. 1995, c.242).

(14) An order granting any other appropriate relief for the plaintiff and dependent children, provided that the plaintiff consents to such relief, including relief requested by the plaintiff at the final hearing, whether or not the plaintiff requested such relief at the time of the granting of the initial emergency order.

(15) An order that requires that the defendant report to the intake unit of the Family Part of the Chancery Division of the Superior Court for monitoring of any other provision of the order.

(16) In addition to the order required by this subsection prohibiting the defendant from possessing any firearm, the court may also issue an order prohibiting the defendant from possessing any other weapon enumerated in subsection r. of N.J.S. 2C:39-1 and ordering the search for and seizure of any firearm or other weapon at any location where the judge has reasonable cause to believe the weapon is located. The judge shall state with specificity the reasons for and scope of the search and seizure authorized by the order.

(17) An order prohibiting the defendant from stalking or following, or threatening to harm, to stalk or to follow, the complainant or any other person named in the order in a manner that, taken in the context of past actions of the defendant, would put the complainant in reasonable fear that the defendant would cause the death or injury of the complainant or any other person. Behavior prohibited under this act includes, but is not limited to, behavior prohibited under the provisions of P.L. 1992, c.209 (C. 2C:12-10).

(18) An order requiring the defendant to undergo a psychiatric evaluation. c. Notice of orders issued pursuant to this section shall be sent by the clerk of the Family Part of the Chancery Division of the Superior Court or other person designated by the court to the appropriate chiefs of police, members of the State Police and any other appropriate law enforcement agency. d. Upon good cause shown, any final order may be dissolved or modified upon application to the Family Part of the Chancery Division of the Superior Court, but only if the judge who dissolves or modifies the order is the same judge who entered the order, or has available a complete record of the hearing or hearings on which the order was based. e. Prior to the issuance of any order pursuant to this section, the court shall order that a search be made of the domestic violence central registry. 2C:25-29.1 Civil penalty for certain domestic violence offenders. 1. In addition to any other disposition, any person found by the court in a final hearing pursuant to section 13 of P.L. 1991, c.261 (C. 2C:25-29) to have committed an act of domestic violence shall be ordered by the court to pay a civil penalty of at least $50, but not to exceed $500. In imposing this civil penalty, the court shall take into consideration the nature and degree of injury suffered by the victim. The court may waive the penalty in cases of extreme financial hardship. 2C:25-29.2 Collection, distribution of civil penalties collected. 2. All civil penalties imposed pursuant to section 1 of P.L. 2001, c.195 (C. 2C:25-29.1) shall be collected as provided by the Rules of Court. All moneys collected shall be forwarded to the Domestic Violence Victims Fund established pursuant to section 3 of P.L. 2001, c.195 (C.30:14-15). 2C:25-29.3 Rules of Court. 4. The Supreme Court may promulgate Rules of Court to effectuate the purposes of this act. 2C:25-29.4 Surcharge for domestic violence offender to fund grants. 50. In addition to any other penalty, fine or charge imposed pursuant to law, a person convicted of an act of domestic violence, as that term is defined by subsection a. of section 3 of P.L. 1991, c.261 (C. 2C:25-19), shall be subject to a surcharge in the amount of $100 payable to the Treasurer of the State of New Jersey for use by the Department of Human Services to fund grants for domestic violence prevention, training and assessment.

2C:25-30. Violations, penalties 14. Except as provided below, a violation by the defendant of an order issued pursuant to this act shall constitute an offense under subsection b. of N.J.S. 2C:29-9 and each order shall so state. All contempt proceedings conducted pursuant to N.J.S. 2C:29-9 involving domestic violence orders, other than those constituting indictable offenses, shall be heard by the Family Part of the Chancery Division of the Superior Court. All contempt proceedings brought pursuant to P.L. 1991, c.261 (C. 2C:25-17 et seq.) shall be subject to any rules or guidelines established by the Supreme Court to guarantee the prompt disposition of criminal matters. Additionally, and notwithstanding the term of imprisonment provided in N.J.S. 2C:43-8, any person convicted of a second or subsequent non indictable domestic violence contempt offense shall serve a minimum term of not less than 30 days. Orders entered pursuant to paragraphs (3), (4), (5), (8) and (9) of subsection b. of section 13 of this act shall be excluded from enforcement under subsection b. of N.J.S. 2C:29-9; however, violations of these orders may be enforced in a civil or criminal action initiated by the plaintiff or by the court, on its own motion, pursuant to applicable court rules.

2C:25-31 Contempt, law enforcement procedures. 15. Where a law enforcement officer finds that there is probable cause that a defendant has committed contempt of an order entered pursuant to the provisions of P.L. 1981, c.426 (C. 2C:25-1 et seq.) or P.L. 1991, c.261 (C. 2C:25-17 et seq.), the defendant shall be arrested and taken into custody by a law enforcement officer. The law enforcement officer shall follow these procedures: The law enforcement officer shall transport the defendant to the police station or such other place as the law enforcement officer shall determine is proper. The law enforcement officer shall: a. Conduct a search of the domestic violence central registry and sign a complaint concerning the incident which gave rise to the contempt charge; b. Telephone or communicate in person or by facsimile with the appropriate judge assigned pursuant to this act and request bail be set on the contempt charge; c. If the defendant is unable to meet the bail set, take the necessary steps to insure that the defendant shall be incarcerated at police headquarters or at the county jail; and d. During regular court hours, the defendant shall have bail set by a Superior Court judge that day. On weekends, holidays and other times when the court is closed, the officer shall arrange to have the clerk of the Family Part notified on the next working day of the new complaint, the amount of bail, the defendants whereabouts and all other necessary details. In addition, if a municipal court judge set the bail, the arresting officer shall notify the clerk of that municipal court of this information.

2C:25-32. Alleged contempt, complainants procedure 16. Where a person alleges that a defendant has committed contempt of an order entered pursuant to the provisions of P.L. 1981, c.426 (C. 2C:25-1 et seq.) or P.L. 1991, c.261, but where a law enforcement officer has found that there is not probable cause sufficient to arrest the defendant, the law enforcement officer shall advise the complainant of the procedure for completing and signing a criminal complaint alleging a violation of N.J.S. 2C:29-9. During regular court hours, the assistance of the clerk of the Family Part of the Chancery Division of the Superior Court shall be made available to such complainants. Nothing in this section shall be construed to prevent the court from granting any other emergency relief it deems necessary.

2C:25-33 Records of applications for relief; reports; confidentiality; forms. 17. a. The Administrative Office of the Courts shall, with the assistance of the Attorney General and the county prosecutors, maintain a uniform record of all applications for relief pursuant to sections 9, 10, 11, 12, and 13 of P.L. 1991, c.261 (C. 2C:25-25, C. 2C:25-26, C. 2C:25-27, C. 2C:25-28, and C. 2C:25-29). The record shall include the following information: (1)The number of criminal and civil complaints filed in all municipal courts and the Superior Court; (2)The sex of the parties; (3)The relationship of the parties; (4)The relief sought or the offense charged, or both; (5)The nature of the relief granted or penalty imposed, or both, including, but not limited to, the following: (a)custody; (b)child support; (c)the specific restraints ordered; (d)any requirements or conditions imposed pursuant to paragraphs (1) through (18) of subsection b. of section 13 of P.L. 1991, c.261 (C. 2C:25-29), including but not limited to professional counseling or psychiatric evaluations; (6)The effective date of each order issued; and (7)In the case of a civil action in which no permanent restraints are entered, or in the case of a criminal matter that does not proceed to trial, the reason or reasons for the disposition. It shall be the duty of the Director of the Administrative Office of the Courts to compile and report annually to the Governor, the Legislature and the Advisory Council on Domestic Violence on the data tabulated from the records of these orders. All records maintained pursuant to this act shall be confidential and shall not be made available to any individual or institution except as otherwise provided by law. b. In addition to the provisions of subsection a. of this section, the Administrative Office of the Courts shall, with the assistance of the Attorney General and the county prosecutors, create and maintain uniform forms to record sentencing, bail conditions and dismissals. The forms shall be used by the Superior Court and by every municipal court to record any order in a case brought pursuant to this act. Such recording shall include but not be limited to, the specific restraints ordered, any requirements or conditions imposed on the defendant, and any conditions of bail.

2C:25-34 Domestic violence restraining orders, central registry. 1. The Administrative Office of the Courts shall establish and maintain a central registry of all persons who have had domestic violence restraining orders entered against them, all persons who have been charged with a crime or offense involving domestic violence, and all persons who have been charged with a violation of a court order involving domestic violence. All records made pursuant to this section shall be kept confidential and shall be released only to: a. A public agency authorized to investigate a report of domestic violence; b. A police or other law enforcement agency investigating a report of domestic violence, or conducting a background investigation involving a persons application for a firearm permit or employment as a police or law enforcement officer or for any other purpose authorized by law or the Supreme Court of the State of New Jersey; c. A court, upon its finding that access to such records may be necessary for determination of an issue before the court; or d. A surrogate, in that persons official capacity as deputy clerk of the Superior Court, in order to prepare documents that may be necessary for a court to determine an issue in an adoption proceeding. Any individual, agency, surrogate or court which receives from the Administrative Office of the Courts the records referred to in this section shall keep such records and reports, or parts thereof, confidential and shall not disseminate or disclose such records and reports, or parts thereof; provided that nothing in this section shall prohibit a receiving individual, agency, surrogate or court from disclosing records and reports, or parts thereof, in a manner consistent with and in furtherance of the purpose for which the records and reports or parts thereof were received. Any individual who disseminates or discloses a record or report, or parts thereof, of the central registry, for a purpose other than investigating a report of domestic violence, conducting a background investigation involving a persons application for a firearm permit or employment as a police or law enforcement officer, making a determination of an issue before the court, or for any other purpose other than that which is authorized by law or the Supreme Court of the State of New Jersey, shall be guilty of a crime of the fourth degree.

2C:25-35 Rules of Court concerning central registry for domestic violence. 7. The Supreme Court of New Jersey may adopt Rules of Court appropriate or necessary to effectuate the purposes of this act.

PORTIONS OF THIS ARTICLE WERE PUBLISHED BY MR. VERCAMMEN IN THE NEW JERSEY LAWYER, THE STATES LARGEST LEGAL PUBLICATION. KENNETH VERCAMMEN & ASSOCIATES, PC ATTORNEY AT LAW 2053 Woodbridge Ave. Edison, NJ 08817 (Phone) 732-572-0500 (Fax) 732-572-0030

Consequences of a Criminal Guilty Plea
1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s)
2. Do you understand that if you plead guilty:

a. You will have a criminal record
b. You may go to Jail or Prison.
c. You will have to pay Fines and Court Costs.

Criminal Articles from www.NJLaws website

Wednesday, October 9, 2013

Defending a Juvenile Case in New Jersey

Defending a Juvenile Case in New Jersey

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2C:48-8 Jail for Crimes and Disorderly Conduct

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Restraining Orders in Domestic Violence Cases

Restraining Orders in Domestic Violence Cases

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