Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Avenue - Edison, NJ 08817
(732) 572-0500 www.njlaws.com
Kenneth Vercammen was included in the “Super Lawyers” list published by Thomson Reuters

Monday, September 07, 2020

LIBERTARIANS FOR TRANSPARENT GOVERNMENT, ETC. VS. CUMBERLAND COUNTY, ET AL. (L-0609-18, CUMBERLAND COUNTY AND STATEWIDE) (A-1661-18T2)

 LIBERTARIANS FOR TRANSPARENT GOVERNMENT, ETC. VS. CUMBERLAND COUNTY, ET AL. (L-0609-18, CUMBERLAND COUNTY AND STATEWIDE) (A-1661-18T2)

The court determines a settlement agreement between defendant Cumberland County and a former County employee resolving a preliminary notice of disciplinary action (PNDA) against the employee is not a government record under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, but instead is a personnel record exempt from disclosure under section 10 of the statute, N.J.S.A. 47:1A-10. The court rejects the argument of plaintiff Libertarians for Transparent Government that the settlement agreement was properly released in redacted form as not supported by the language of section 10 or the history of excluding personnel and pension records from public access contained in Executive Orders 9 (Hughes), 11 (Byrne) and 21 (McGreevey).

The court reverses the trial court order that released the redacted settlement agreement and remands for the court to consider whether Libertarians is entitled to the agreement, either in whole or in part, under the common law right of access to public records, see Bergen Cty. Improvement Auth. v. N. Jersey Media Grp., Inc., 370 N.J. Super. 504, 520 (App. Div. 2004).

STATE OF NEW JERSEY VS. MICHAEL GUERINO (16-04-0672,

 STATE OF NEW JERSEY VS. MICHAEL GUERINO (16-04-0672, OCEAN COUNTY AND STATEWIDE) (A-4644-17T1)

This case examines the scope of Rule 3:11, which requires law enforcement to make a detailed record of an out-of-court identification. The court focused on an unusual live identification event that took place almost two years after the robbery and two weeks before trial. The prosecutor asked the robbery victim to come to the courthouse and sit in a hallway while defendant and other jail inmates were led past her. This event was not electronically recorded and no verbatim account was made of the dialogue between the victim and prosecutor's office representatives who accompanied her. Defendant argued this event corrupted the victim's memory, rendering her subsequent in-court identification inadmissible.

The State did not seek to introduce evidence of the hallway event at trial and characterized it as "trial prep." The court nonetheless concluded it was an out-of-court "identification procedure conducted by a law enforcement officer" within the meaning of Rule 3:11(a) and therefore should have been recorded. The court remanded for the trial court to make detailed findings concerning whether the hallway procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

STATE OF NEW JERSEY VS. JEREMIE FABER (17-036,

 STATE OF NEW JERSEY VS. JEREMIE FABER (17-036, MONMOUTH COUNTY AND STATEWIDE) (A-5726-17T4)

Defendant was convicted in municipal court of driving while under the influence of alcohol (DWI), N.J.S.A. 39:4-50(a). In a de novo appeal pursuant to Rule 3:23-8, the Law Division found defendant guilty, but reduced the period of license suspension from nine months to seven months because the municipal court judge improperly relied on defendant's lack of credibility to support a lengthier period of license suspension. In this appeal, defendant argues the Law Division should have vacated his municipal court conviction and remanded the matter for a new trial.

This court affirms but sua sponte remands for the Law Division to resentence defendant in accordance with N.J.S.A. 39:4-50(a)(1)(ii) and N.J.S.A. 39:4-50.17. This court also notes the Law Division's failure to follow the standard in State v. Robertson, 228 N.J. 138 (2017) when it stayed the execution of defendant's sentence pending the outcome of this appeal.

Sunday, August 23, 2020

STATE OF NEW JERSEY IN THE INTEREST OF Z.S., A JUVENILE (FJ-17-0013-20, SALEM COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-3516-19T1)

STATE OF NEW JERSEY IN THE INTEREST OF Z.S., A JUVENILE (FJ-17-0013-20, SALEM COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-3516-19T1)

This interlocutory appeal concerns the appropriate procedures under the current statute, N.J.S.A. 2A:4A-26.1, for evaluating whether a juvenile charged with a very serious offense should be waived to the Criminal Part and prosecuted as an adult.

On leave granted, the juvenile in this case, defendant Z.S., appeals the Family Part judge's order sustaining a prosecutor's decision to waive him to the Criminal Part to face a jury trial for committing first-degree aggravated sexual assault upon a minor.

The court vacates the trial judge's order because of several critical deficiencies in the processes that resulted in Z.S.'s waiver. Among other things, the prosecutor's written statement of reasons in support of waiver was incomplete, conclusory, and utilized obsolete 2000 guidelines that do not track the controlling factors under the revised 2016 waiver statute.

In addition, the prosecutor failed to explain in writing in advance of the waiver hearing why the extensive mitigating psychological evidence marshalled by the defense, documenting Z.S.'s intellectual disabilities and mental health issues, was inconsequential.

The trial judge also misapplied his discretion by declining to adjourn the waiver hearing at defense counsel's request, with the State's acquiescence, after she had been released from the hospital for pneumonia only two days earlier and was still feeling ill and having difficulty breathing.

Because of these grave procedural shortcomings, the court remands this matter for a renewed waiver hearing. The opinion also offers guidance on how best to proceed in such waiver matters under the revised 2016 statute.

Sunday, August 16, 2020

In the Matter of the Civil Commitment of P.D. (083027)(

 In the Matter of the Civil Commitment of P.D. (083027)(Essex County & Statewide) (A-94-18; 083027)

A person facing a civil commitment hearing under the SVPA may not take discovery under Rule4:10-1, Rule 4:17-1, or Rule 4:18-1. The discovery permitted by those rules is not authorized by the SVPA and cannot be accomplished on the expedited schedule that the statute prescribes. However, based on the terms of the SVPA, a person subject to an SVPA civil commitment hearing is entitled to limited discovery focused on the elements of the State’s burden of proof. The Court therefore adopts a new court rule in which it enumerates the categories of documents subject to discovery in an SVPA proceeding and sets forth the requirements for the reports of the State’s experts.

State v. Robert Andrews (082209) (Essex County & Statewide) (A-72-18;

 State v. Robert Andrews (082209) (Essex County & Statewide) (A-72-18; 082209)

Neither federal nor state protections against compelled disclosure shield Andrews’s passcodes

Sunday, August 09, 2020

STATE OF NEW JERSEY VS. TYWAUN S. HEDGESPETH (16-07-2215 AND 16-07-2216, ESSEX COUNTY AND STATEWIDE)(A-0850-18T3)

 STATE OF NEW JERSEY VS. TYWAUN S. HEDGESPETH (16-07-2215 AND 16-07-2216, ESSEX COUNTY AND STATEWIDE)(A-0850-18T3)

In this direct appeal from a judgment of conviction, the court addressed several issues raised by defendant in a longer unpublished opinion affirming defendant's convictions. The two issues of first impression in New Jersey addressed in its published opinion are: (1) whether discharge from probation constitutes "release from confinement" for the purpose of triggering the ten-year time limit under N.J.R.E. 609(b)(1)'s more stringent standard for the admissibility of prior convictions for impeachment purposes; and (2) whether a "no-permit" affidavit prepared by a non-testifying police witness is testimonial and thereby subject to the Confrontation Clause. As to the former, the court held that the plain language of N.J.R.E. 609, coupled with the construction of identical language by the federal courts and sister states, as well as prior interpretation of confinement by New Jersey State courts in related and unrelated contexts, compel the conclusion that probation does not qualify as confinement as required under N.J.R.E. 609(b)(1). As to the latter, the court determined that the "no-permit" affidavit was not testimonial under the primary purpose test, and its admission without the testimony of the affiant who conducted the permit search did not violate the Confrontation Clause. The court reasoned that the affidavit established the absence of an objective fact, rather than detailing the criminal wrongdoing of defendant.

In the Matter of Carlia M. Brady (083462) (D-10-19

 In the Matter of Carlia M. Brady (083462) (D-10-19; 083462)

The Court concurs in substantial part with the ACJC’s factual findings and holds that clear and convincing evidence supports the ACJC’s determination that respondent committed the Code violations charged. The Court modifies the ACJC’s recommendation that respondent be removed from judicial office, however, and instead imposes on respondent a three-month suspension from judicial duties.

State v. G.E.P; State v. R.P.; State v. C.P.; State v. C.K.(082732)(Morris, Bergen, Gloucester, Camden County & Statewide) (A-4-19; 082732)

 State v. G.E.P; State v. R.P.; State v. C.P.; State v. C.K.(082732)(Morris, Bergen, Gloucester, Camden County & Statewide) (A-4-19; 082732)

When all factors bearing upon retroactivity are weighed -- whether the rule's purpose "would be furthered by a retroactive application," the State's reliance on the previous rule, and "the effect a retroactive application would have on the administration of justice," State v. Henderson, 208 N.J. 208, 300 (2011) -- pipeline retroactivity is appropriate. Considering the evidence presented in G.E.P.'s case, the admission of CSAAS testimony did not deny him a fair trial, and the Court reverses the Appellate Division's judgment as to him. As to R.P., C.P., and C.K., the CSAAS testimony bolstering the alleged victims' testimony was clearly capable of producing an unjust result, and their convictions were thus properly reversed by the Appellate Division.

State v. Juan E. Cruz-Pena (083177) (Passaic County & Statewide) (A-3-19;

 State v. Juan E. Cruz-Pena (083177) (Passaic County & Statewide) (A-3-19; 083177)

The language of the kidnapping statute, along with the case law construing that language, must be read in a sensible manner and not taken to an illogical conclusion. Holding a victim in captivity for a period of four to five hours, while assaulting and sexually abusing her, satisfies the “substantial period” requirement of the kidnapping statute -- even if the length of the confinement is co-extensive with the continuous sexual and physical abuse of the victim. In addition, the Court cannot find that, as a matter of law, the terrifying four-to-five-hour period of C.M.’s confinement was “merely incidental” to the sexual violence committed against her. There is no basis to disturb the jury’s verdict.

Wednesday, August 05, 2020

Benihana Disorderly Arrests and Legal Representation


Kenneth Vercammen’s Law Office represents people charged with criminal charges, underage drinking and juvenile offenses. We provide representation throughout New Jersey. Criminal charges can cost you.  If convicted, you can face high fines, jail, Probation  and other penalties.  Don't give up!  Our Law Office can provide experienced attorney representation for criminal violations. We also help represent persons who are injured at bars and restaurants.
Our website www.njlaws.com provides information on criminal offenses we can be retained to represent people. 
 Disorderly Conduct 2C:33-2. 
a. Improper behavior. A person is guilty of a petty disorderly persons offense, if with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof he
(1) Engages in fighting or threatening, or in violent or tumultuous behavior; or
(2) Creates a hazardous or physically dangerous condition by any act, which serves no legitimate purpose of the actor.
b. Offensive language. A person is guilty of a petty disorderly persons offense if, in a public place, and with purpose to offend the sensibilities of a hearer or in reckless disregard of the probability of so doing, he addresses unreasonably loud and offensively coarse or abusive language, given the circumstances of the person present and the setting of the utterance, to any person present.
"Public" means affecting or likely to affect persons in a place to which the public or a substantial group has access; among the places included are highways, transport facilities, schools, prisons, apartment houses, places of business or amusement, or any neighborhood.
Other Relevant Laws:
  2C:12-1. Assault. a. Simple assault. A person is guilty of assault if he:
     (1) Attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or
     (2) Negligently causes bodily injury to another with a deadly weapon; or
     (3) Attempts by physical menace to put another in fear of imminent serious bodily injury.
    •         Simple assault is a disorderly persons offense unless committed in a fight or scuffle entered into by mutual consent, in which case it is a petty disorderly persons offense.
Resisting Arrest: 
     It is a criminal offense in the State of New Jersey (2C: 29-2) for a person to purposely prevent a law enforcement officer from effecting a lawful arrest.
    •    A crime of the fourth degree.
Hindering Apprehension or Prosecution
A person commits an offense(2C:29-3) if with purpose to hinder the detention, apprehension, investigation, prosecution, conviction, or punishment of another for any crime or motor vehicle violation.
    •    Depending on the circumstances, a crime of the third degree, fourth degree, or a disorderly persons offense.
2C:33-15 Underage Possession/Consumption Alcohol
2C:33-15. Possession, consumption of alcoholic beverages by persons under legal age; penalty
a. Any person under the legal age to purchase alcoholic beverages who knowingly possesses without legal authority or who knowingly consumes any alcoholic beverage in any school, public conveyance, public place, or place of public assembly, or motor vehicle, is guilty of a disorderly persons offense, and shall be fined not less than $500.00.
b. Whenever this offense is committed in a motor vehicle, the court shall, in addition to the sentence authorized for the offense, suspend or postpone for six months the driving privilege of the defendant. Upon the conviction of any person under this section, the court shall forward a report to the Division of Motor Vehicles stating the first and last day of the suspension or postponement period imposed by the court pursuant to this section. If a person at the time of the imposition of a sentence is less than 17 years of age, the period of license postponement, including a suspension or postponement of the privilege of operating a motorized bicycle, shall commence on the day the sentence is imposed and shall run for a period of six months after the person reaches the age of 17 years.
        If a person at the time of the imposition of a sentence has a valid drivers license issued by this State, the court shall immediately collect the license and forward it to the division along with the report. If for any reason the license cannot be collected, the court shall include in the report the complete name, address, date of birth, eye color, and sex of the person as well as the first and last date of the license suspension period imposed by the court.
    The court shall inform the person orally and in writing that if the person is convicted of operating a motor vehicle during the period of license suspension or postponement, the person shall be subject to the penalties set forth in R.S.39:3-40. A person shall be required to acknowledge receipt of the written notice in writing. Failure to receive a written notice or failure to acknowledge in writing the receipt of a written notice shall not be a defense to a subsequent charge of a violation of R.S.39:3-40.
     If the person convicted under this section is not a New Jersey resident, the court shall suspend or postpone, as appropriate, the non-resident driving privilege of the person based on the age of the person and submit to the division the required report. The court shall not collect the license of a non-resident convicted under this section. Upon receipt of a report by the court, the division shall notify the appropriate officials in the licensing jurisdiction of the suspension or postponement.
c. In addition to the general penalty prescribed for a disorderly persons offense, the court may require any person who violates this act to participate in an alcohol education or treatment program, authorized by the Department of Health and Senior Services, for a period not to exceed the maximum period of confinement prescribed by law for the offense for which the individual has been convicted.
d. Nothing in this act shall apply to possession of alcoholic beverages by any such person while actually engaged in the performance of employment pursuant to an employment permit issued by the Director of the Division of Alcoholic Beverage Control, or for a bona fide hotel or restaurant, in accordance with the provisions of R.S.33:1-26, or while actively engaged in the preparation of food while enrolled in a culinary arts or hotel management program at a county vocational school or post secondary educational institution.
e. The provisions of section 3 of P.L.1991, c.169 (C.33:1-81.1a) shall apply to a parent, guardian or other person with legal custody of a person under 18 years of age who is found to be in violation of this section.33:1-81. Underage drinking and Misrepresenting age to induce sale or delivery to minor; disorderly person.
   
Underage Drinking and Misrepresenting Age to Induce Sale or Delivery to Minor
     33:1-81.  It shall be unlawful for:
     (a)  A person under the legal age for purchasing alcoholic beverages to enter any premises licensed for the retail sale of alcoholic  beverages for the purpose of purchasing, or having served or delivered to him or her, any alcoholic beverage; or 
    (b)  A person under the legal age for purchasing alcoholic beverages to consume any alcoholic beverage on premises licensed for the retail sale of alcoholic beverages, or to purchase, attempt to purchase or have another purchase for him any alcoholic beverage; or 
    (c)  Any person to misrepresent or misstate his age, or the age of any other person for the purpose of inducing any licensee or any employee of any licensee, to sell, serve or deliver any alcoholic beverage to a person under the legal age for purchasing alcoholic beverages; or 
    (d)  Any person to enter any premises licensed for the retail sale of alcoholic beverages for the purpose of purchasing, or to purchase alcoholic beverages, for another person who does not because of his age have the right to purchase and consume alcoholic beverages. 
    Any person who shall violate any of the provisions of this section shall be deemed and adjudged to be a disorderly person, and upon conviction thereof, shall be punished by a fine of not less than $500.00. In addition, the court shall suspend or postpone the person's license to operate a motor vehicle for six months. 
    Upon the conviction of any person under this section, the court shall forward a report to the Division of Motor Vehicles stating the first and last day of the suspension or postponement period imposed by the court pursuant to this section.  If a person at the time of the imposition of a sentence is less than 17 years of age, the period of license postponement, including a suspension or postponement of the privilege of operating a motorized bicycle, shall commence on the day the sentence is imposed and shall run for a period of six months after the person reaches the age of 17 years. 
    If a person at the time of the imposition of a sentence has a valid driver's license issued by this State, the court shall immediately collect the license and forward it to the division along with the report.  If for any reason the license cannot be collected, the court shall include in the report the complete name, address, date of birth, eye color, and sex of the person as well as the first and last date of the license suspension period imposed by the court. 
    The court shall inform the person orally and in writing that if the person is convicted of operating a motor vehicle during the period of license suspension or postponement, the person shall be subject to the penalties set forth in R.S. 39:3-40.  A person shall be required to acknowledge receipt of the written notice in writing.  Failure to receive a written notice or failure to acknowledge in writing the receipt of a written notice shall not be a defense to a subsequent charge of a violation of R.S. 39:3-40. 
    If the person convicted under this section is not a New Jersey resident, the court shall suspend or postpone, as appropriate given the age at the time of sentencing, the non-resident driving privilege of the person and submit to the division the required report.  The court shall not collect the license of a non-resident convicted under this section. Upon receipt of a report by the court, the division shall notify the appropriate officials in the licensing jurisdiction of the suspension or postponement.
    In addition to the general penalties prescribed for an offense, the court may require any person under the legal age to purchase alcoholic beverages who violates this act to participate in an alcohol education or treatment program authorized by the Department of Health for a period not to exceed the maximum period of confinement prescribed by law for the offense for which the individual has been convicted. 
33:1-81.1.  Hearing;  attendance by parent or guardian;  subpoena
    In any hearing for a violation of section 33:1-81 of the Revised Statutes the court in its discretion may require the attendance at such hearing of a parent or guardian, if there be no parent, of the minor charged with such violation if such parent or guardian is a resident of the State and may, in its  discretion, compel such attendance by subpoena.
33:1-81.1a.  Violations by parent, guardian, notification, fine 
     A parent, guardian or other person having legal custody of a person under 18 years of age found in violation of R.S. 33:1-81 or section 1 of P.L. 1979, c.264 (C. 2C:33-15) shall be notified of the violation in writing.  The parent, guardian or other person having legal custody of a person under 18 years of age shall be subject to a fine in the amount of $500.00 upon any subsequent violation of R.S. 33:1-81 or section 1 of P.L. 1979, c.264 (C. 2C:33-15) on the part of such person if it is shown that the parent, guardian or other person having legal custody failed or neglected to exercise reasonable supervision or control over the conduct of the person under 18 years of age. 
Providing Alcohol to Persons Under 21
It is a criminal offense in the State of New Jersey (2C:33-17a) to serve alcohol to anyone under the legal age of 21.
A fine of up to $1,000 and/or up to 6 months imprisonment.
Allowing Alcohol Possession or Consumption by Persons Under 21 at Private Premises
It is a criminal offense in the State of New Jersey (2C:33-17b) to make your home or property available for the purpose of allowing minors a place to consume alcohol.
(Exemptions:  Any underage person or persons who possesses or consumes alcoholic beverages in connection with religious observance, ceremony or right or consumes or possesses an alcoholic beverage in the presence of and with the permission of the parent , guardian, or relative who has attained the legal age to purchase and consume alcoholic beverages.)
    •    A fine of up to $1.000 and /or up to 6 months imprisonment.         
Possession, Use or Being Under the Influence, or Failure to Make Lawful Disposition
It is a criminal offense in the State of New Jersey (2C: 35-10) for any person knowingly or purposely, to obtain , or to possess actually or constructively, a controlled dangerous substance or controlled substance analog.
    •    Depending on the circumstances, a crime of third degree, fourth degree, or a disorderly persons offense.
Drug Possession by Motor VehicleOperator
No person shall operate a motor vehicle on any highway( 39:4-49.1) while knowingly having in his possession or in the motor vehicle any controlled dangerous substance.
    •    A fine not less than $50.00 and loss of driving privilege for a period of 2 years from the date of his conviction.
No Consumption of Alcoholic Beverages in Motor Vehicles
A person shall not consume an alcoholic beverage while operating a motor vehicle.  A passenger in a motor vehicle shall not consume an alcoholic beverage while the motor vehicle is being operated.( 39:4-51a)
    •    A fine of $200.00 for the first offense, $250.00 for the second offense or community service for a period of 10 days.
Prohibition of Possession of Open, Unsealed Alcoholic Beverage Container
All occupants of a motor vehicle located on a public highway, or right of way of a public highway, shall be prohibited from possessing any open or unsealed alcoholic beverage container.(39:4-51b)
    •    A fine of $200.00 for the first offense, $250.00 for the second offense or community service for a period of 10 days.
Mandatory Forfeiture or Postponement of Driving Privileges
Every person convicted of or adjudicated delinquent for a violation of certain offenses (2C:35-16) shall forfeit his right to operate a motor vehicle over the highways of this State for a period to be fixed by the Court at not less than 6 months or more than 2 years which shall commence on the day the sentence is imposed.
CONCLUSION
    If charged with any criminal offense, immediately schedule an appointment with a criminal trial attorney. Don't rely on a real estate attorney, public defender or a family member who took a law class in school. When your life and career is on the line, hire the best attorney available.
KENNETH  VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
 2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500

Disorderly Arrests at Applebee's and Legal Representation

Applebee's Disorderly Arrests and Legal Representation


Disorderly Arrests at Applebee's and Legal Representation
Kenneth Vercammen’s Law Office represents people charged with criminal charges, underage drinking and juvenile offenses. We provide representation throughout New Jersey. Criminal charges can cost you.  If convicted, you can face high fines, jail, Probation  and other penalties.  Don't give up!  Our Law Office can provide experienced attorney representation for criminal violations. We also help represent persons who are injured at bars and restaurants.
Our website www.njlaws.com provides information on criminal offenses we can be retained to represent people.

 Disorderly Conduct 2C:33-2. 
a. Improper behavior. A person is guilty of a petty disorderly persons offense, if with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof he
(1) Engages in fighting or threatening, or in violent or tumultuous behavior; or
(2) Creates a hazardous or physically dangerous condition by any act, which serves no legitimate purpose of the actor.
b. Offensive language. A person is guilty of a petty disorderly persons offense if, in a public place, and with purpose to offend the sensibilities of a hearer or in reckless disregard of the probability of so doing, he addresses unreasonably loud and offensively coarse or abusive language, given the circumstances of the person present and the setting of the utterance, to any person present.
"Public" means affecting or likely to affect persons in a place to which the public or a substantial group has access; among the places included are highways, transport facilities, schools, prisons, apartment houses, places of business or amusement, or any neighborhood.

Other Relevant Laws:
  2C:12-1. Assault. a. Simple assault. A person is guilty of assault if he:
     (1) Attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or
     (2) Negligently causes bodily injury to another with a deadly weapon; or
     (3) Attempts by physical menace to put another in fear of imminent serious bodily injury.
    •         Simple assault is a disorderly persons offense unless committed in a fight or scuffle entered into by mutual consent, in which case it is a petty disorderly persons offense.

Resisting Arrest: 
     It is a criminal offense in the State of New Jersey (2C: 29-2) for a person to purposely prevent a law enforcement officer from effecting a lawful arrest.
    •    A crime of the fourth degree.

Hindering Apprehension or Prosecution
A person commits an offense(2C:29-3) if with purpose to hinder the detention, apprehension, investigation, prosecution, conviction, or punishment of another for any crime or motor vehicle violation.
    •    Depending on the circumstances, a crime of the third degree, fourth degree, or a disorderly persons offense.

2C:33-15 Underage Possession/Consumption Alcohol
2C:33-15. Possession, consumption of alcoholic beverages by persons under legal age; penalty
a. Any person under the legal age to purchase alcoholic beverages who knowingly possesses without legal authority or who knowingly consumes any alcoholic beverage in any school, public conveyance, public place, or place of public assembly, or motor vehicle, is guilty of a disorderly persons offense, and shall be fined not less than $500.00.
b. Whenever this offense is committed in a motor vehicle, the court shall, in addition to the sentence authorized for the offense, suspend or postpone for six months the driving privilege of the defendant. Upon the conviction of any person under this section, the court shall forward a report to the Division of Motor Vehicles stating the first and last day of the suspension or postponement period imposed by the court pursuant to this section. If a person at the time of the imposition of a sentence is less than 17 years of age, the period of license postponement, including a suspension or postponement of the privilege of operating a motorized bicycle, shall commence on the day the sentence is imposed and shall run for a period of six months after the person reaches the age of 17 years.
        If a person at the time of the imposition of a sentence has a valid drivers license issued by this State, the court shall immediately collect the license and forward it to the division along with the report. If for any reason the license cannot be collected, the court shall include in the report the complete name, address, date of birth, eye color, and sex of the person as well as the first and last date of the license suspension period imposed by the court.
    The court shall inform the person orally and in writing that if the person is convicted of operating a motor vehicle during the period of license suspension or postponement, the person shall be subject to the penalties set forth in R.S.39:3-40. A person shall be required to acknowledge receipt of the written notice in writing. Failure to receive a written notice or failure to acknowledge in writing the receipt of a written notice shall not be a defense to a subsequent charge of a violation of R.S.39:3-40.
     If the person convicted under this section is not a New Jersey resident, the court shall suspend or postpone, as appropriate, the non-resident driving privilege of the person based on the age of the person and submit to the division the required report. The court shall not collect the license of a non-resident convicted under this section. Upon receipt of a report by the court, the division shall notify the appropriate officials in the licensing jurisdiction of the suspension or postponement.
c. In addition to the general penalty prescribed for a disorderly persons offense, the court may require any person who violates this act to participate in an alcohol education or treatment program, authorized by the Department of Health and Senior Services, for a period not to exceed the maximum period of confinement prescribed by law for the offense for which the individual has been convicted.
d. Nothing in this act shall apply to possession of alcoholic beverages by any such person while actually engaged in the performance of employment pursuant to an employment permit issued by the Director of the Division of Alcoholic Beverage Control, or for a bona fide hotel or restaurant, in accordance with the provisions of R.S.33:1-26, or while actively engaged in the preparation of food while enrolled in a culinary arts or hotel management program at a county vocational school or post secondary educational institution.
e. The provisions of section 3 of P.L.1991, c.169 (C.33:1-81.1a) shall apply to a parent, guardian or other person with legal custody of a person under 18 years of age who is found to be in violation of this section.33:1-81. Underage drinking and Misrepresenting age to induce sale or delivery to minor; disorderly person.
 
Underage Drinking and Misrepresenting Age to Induce Sale or Delivery to Minor
     33:1-81.  It shall be unlawful for:
     (a)  A person under the legal age for purchasing alcoholic beverages to enter any premises licensed for the retail sale of alcoholic  beverages for the purpose of purchasing, or having served or delivered to him or her, any alcoholic beverage; or
    (b)  A person under the legal age for purchasing alcoholic beverages to consume any alcoholic beverage on premises licensed for the retail sale of alcoholic beverages, or to purchase, attempt to purchase or have another purchase for him any alcoholic beverage; or
    (c)  Any person to misrepresent or misstate his age, or the age of any other person for the purpose of inducing any licensee or any employee of any licensee, to sell, serve or deliver any alcoholic beverage to a person under the legal age for purchasing alcoholic beverages; or
    (d)  Any person to enter any premises licensed for the retail sale of alcoholic beverages for the purpose of purchasing, or to purchase alcoholic beverages, for another person who does not because of his age have the right to purchase and consume alcoholic beverages.
    Any person who shall violate any of the provisions of this section shall be deemed and adjudged to be a disorderly person, and upon conviction thereof, shall be punished by a fine of not less than $500.00. In addition, the court shall suspend or postpone the person's license to operate a motor vehicle for six months.
    Upon the conviction of any person under this section, the court shall forward a report to the Division of Motor Vehicles stating the first and last day of the suspension or postponement period imposed by the court pursuant to this section.  If a person at the time of the imposition of a sentence is less than 17 years of age, the period of license postponement, including a suspension or postponement of the privilege of operating a motorized bicycle, shall commence on the day the sentence is imposed and shall run for a period of six months after the person reaches the age of 17 years.
    If a person at the time of the imposition of a sentence has a valid driver's license issued by this State, the court shall immediately collect the license and forward it to the division along with the report.  If for any reason the license cannot be collected, the court shall include in the report the complete name, address, date of birth, eye color, and sex of the person as well as the first and last date of the license suspension period imposed by the court.
    The court shall inform the person orally and in writing that if the person is convicted of operating a motor vehicle during the period of license suspension or postponement, the person shall be subject to the penalties set forth in R.S. 39:3-40.  A person shall be required to acknowledge receipt of the written notice in writing.  Failure to receive a written notice or failure to acknowledge in writing the receipt of a written notice shall not be a defense to a subsequent charge of a violation of R.S. 39:3-40.
    If the person convicted under this section is not a New Jersey resident, the court shall suspend or postpone, as appropriate given the age at the time of sentencing, the non-resident driving privilege of the person and submit to the division the required report.  The court shall not collect the license of a non-resident convicted under this section. Upon receipt of a report by the court, the division shall notify the appropriate officials in the licensing jurisdiction of the suspension or postponement.
    In addition to the general penalties prescribed for an offense, the court may require any person under the legal age to purchase alcoholic beverages who violates this act to participate in an alcohol education or treatment program authorized by the Department of Health for a period not to exceed the maximum period of confinement prescribed by law for the offense for which the individual has been convicted.
33:1-81.1.  Hearing;  attendance by parent or guardian;  subpoena
    In any hearing for a violation of section 33:1-81 of the Revised Statutes the court in its discretion may require the attendance at such hearing of a parent or guardian, if there be no parent, of the minor charged with such violation if such parent or guardian is a resident of the State and may, in its  discretion, compel such attendance by subpoena.
33:1-81.1a.  Violations by parent, guardian, notification, fine
     A parent, guardian or other person having legal custody of a person under 18 years of age found in violation of R.S. 33:1-81 or section 1 of P.L. 1979, c.264 (C. 2C:33-15) shall be notified of the violation in writing.  The parent, guardian or other person having legal custody of a person under 18 years of age shall be subject to a fine in the amount of $500.00 upon any subsequent violation of R.S. 33:1-81 or section 1 of P.L. 1979, c.264 (C. 2C:33-15) on the part of such person if it is shown that the parent, guardian or other person having legal custody failed or neglected to exercise reasonable supervision or control over the conduct of the person under 18 years of age.

Providing Alcohol to Persons Under 21
It is a criminal offense in the State of New Jersey (2C:33-17a) to serve alcohol to anyone under the legal age of 21.
A fine of up to $1,000 and/or up to 6 months imprisonment.
Allowing Alcohol Possession or Consumption by Persons Under 21 at Private Premises
It is a criminal offense in the State of New Jersey (2C:33-17b) to make your home or property available for the purpose of allowing minors a place to consume alcohol.
(Exemptions:  Any underage person or persons who possesses or consumes alcoholic beverages in connection with religious observance, ceremony or right or consumes or possesses an alcoholic beverage in the presence of and with the permission of the parent , guardian, or relative who has attained the legal age to purchase and consume alcoholic beverages.)
    •    A fine of up to $1.000 and /or up to 6 months imprisonment.       

Possession, Use or Being Under the Influence, or Failure to Make Lawful Disposition
It is a criminal offense in the State of New Jersey (2C: 35-10) for any person knowingly or purposely, to obtain , or to possess actually or constructively, a controlled dangerous substance or controlled substance analog.
    •    Depending on the circumstances, a crime of third degree, fourth degree, or a disorderly persons offense.

Drug Possession by Motor VehicleOperator
No person shall operate a motor vehicle on any highway( 39:4-49.1) while knowingly having in his possession or in the motor vehicle any controlled dangerous substance.
    •    A fine not less than $50.00 and loss of driving privilege for a period of 2 years from the date of his conviction.

No Consumption of Alcoholic Beverages in Motor Vehicles
A person shall not consume an alcoholic beverage while operating a motor vehicle.  A passenger in a motor vehicle shall not consume an alcoholic beverage while the motor vehicle is being operated.( 39:4-51a)
    •    A fine of $200.00 for the first offense, $250.00 for the second offense or community service for a period of 10 days.

Prohibition of Possession of Open, Unsealed Alcoholic Beverage Container
All occupants of a motor vehicle located on a public highway, or right of way of a public highway, shall be prohibited from possessing any open or unsealed alcoholic beverage container.(39:4-51b)
    •    A fine of $200.00 for the first offense, $250.00 for the second offense or community service for a period of 10 days.

Mandatory Forfeiture or Postponement of Driving Privileges
Every person convicted of or adjudicated delinquent for a violation of certain offenses (2C:35-16) shall forfeit his right to operate a motor vehicle over the highways of this State for a period to be fixed by the Court at not less than 6 months or more than 2 years which shall commence on the day the sentence is imposed.

CONCLUSION
    If charged with any criminal offense, immediately schedule an appointment with a criminal trial attorney. Don't rely on a real estate attorney, public defender or a family member who took a law class in school. When your life and career is on the line, hire the best attorney available.

KENNETH  VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
 2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500

Monday, August 03, 2020

Ashley Furniture HomeStores Shoplifting Defenses

Ashley Furniture HomeStores Shoplifting Defenses

The state must prove the Defendant had the knowing intent to commit a criminal act in a shoplifting case.
Sometimes the defendant was not aware that there was a criminal act being committed because of mental issues.

NJSA 2C: 4-2. Evidence of mental disease or defect admissible when relevant to element of the offense.
Evidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did not have a state of mind, which is an element of the offense. In the absence of such evidence, it may be presumed that the defendant had no mental disease or defect, which would negate a state of mind, which is an element of the offense.

Criminal Indictable and Disorderly Offense Penalties

Disorderly person criminal offenses- ex Simple Assault, shoplifting & cases in Municipal Court
Jail 2C: 43- 8 jail 6 month maximum
probation 1-2 year
community service 180 days maximum
mandatory costs, VCCB and other penalties
Disorderly- fines: 2C: 43- 3 $1,000 Fine maximum

There are many other penalties that the court must impose in criminal cases. There are dozens of other penalties a court can impose, depending on the type of matter.

Indictable Criminal Penalties [Felony type] [ Superior Court]
Jail potential Fine max Probation
1st degree 10- 20 years $200,000 [presumption of jail]
2nd degree 5-10 years $150,000 [presumption of jail]
3rd degree 3- 5 years $15,000 1 year- 5 year
4th degree 0- 18 months $10,000 1 year- 5 year

The NJ Model Jury charges set forth the elements of SHOPLIFTING [CONCEALMENT]
(N.J.S.A. 2C: 20-11b(2))

The statute provides in pertinent part that it is a crime for:
any person purposely to conceal upon his person or otherwise any merchandise offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of the processes, use or benefit of such merchandise or converting the same to the use of such person without paying to the merchant the value thereof.

In order for the finder of fact to find the defendant guilty of shoplifting, the State must prove each of the following elements beyond a reasonable doubt:
1. that defendant purposely concealed upon his person or otherwise any merchandise offered for sale by (name of commercial establishment);
2. that (name of commercial establishment) was a store or other retail mercantile establishment; and
3. that defendant did so with the purpose of depriving the merchant of the processes, use, or benefit of such merchandise [OR of converting such merchandise to his/her use] without paying the merchant the value thereof.

The first element that the State must prove beyond a reasonable doubt is that defendant purposely concealed upon his person or otherwise any merchandise offered for sale by any store or other retail establishment. The term conceal means to conceal merchandise so that, although there may be some notice of its presence, it is not visible through ordinary observation.1 The term merchandise means any goods, chattels, foodstuffs or wares of any type and description, regardless of the value thereof.2

A person acts purposely with respect to the nature of his or her conduct or a result of his conduct if it is the persons conscious object to engage in conduct of that nature or to cause such a result. That is, a person acts purposely if he or she means to act in a certain way or to cause a certain result. A person acts purposely with respect to attendant circumstances if the person is aware of the existence of such circumstances or believes or hopes that they exist.3
1 N.J.S.A. 2C:20-11a(6).
2 N.J.S.A. 2C:20-11a(3).
3 N.J.S.A. 2C:2-2(b)(1).

Purpose is a state of mind. A state of mind is rarely susceptible of direct proof, but must ordinarily be inferred from the facts. Therefore, it is not necessary that the State produce witnesses to testify that an accused said he/she had a certain state of mind when he/she engaged in a particular act. It is within the fact finders power to find that such proof has been furnished beyond a reasonable doubt by inference, which may arise from the nature of his/her acts and his/her conduct, and from all he/she said and did at the particular time and place, and from all of the surrounding circumstances.

The third element that the State must prove beyond a reasonable doubt is that defendant acted with the purpose of depriving the merchant of the processes, use or benefit of such merchandise [OR converting such merchandise to his/her use] without paying the merchant the value of the merchandise.

WHEN OFFENSE CHARGED REQUIRES A PURPOSEFUL OR KNOWING STATE OF MIND, CONTINUE CHARGE AS FOLLOWS:

Although the statute refers to mistake of fact or law as a defense, caselaw makes it clear that it is not genuinely a defense at all: instead, it is an attack on the prosecutions ability to prove the requisite mental state for at least one objective element of the crime. State v. Sexton, 160 N.J. 93, 99-100 (1999). Since it is obviously impossible for any single charge to explain precisely how the offered defense plays into the element[s] of every possible offense that mistake of fact or law could apply to (Sexton, 160 N.J. at 106), and at best can offer a more general charge on the subject of mistake of fact or law (State v. Pena, 178 N.J. 297, 319 (2004)), this model charge is organized by reference to the state of mind under N.J.S.A. 2C:2-2b contained in the offense charged by the State, and then by the degree to which the mistake of fact or law exonerates or mitigates the defendants guilt. As always, the trial court must tailor the precise type of mistake that defendant relies on to the facts of the particular crime or offense charged and the facts adduced at trial. State v. Concepcion, 111 N.J. 373, 379-380 (1988).
2 Since even an unreasonable mistake can negate the required state of mind for the charged offense, the statutory requirement that the defendant reasonably arrived at the conclusion underlying the mistake was eliminated and, therefore, is not referred to in this model charge. Sexton, 160 N.J. at 105; Pena, 178 N.J. at 306.
3 Sexton, 160 N.J. at 100; Pena, 178 N.J. at 306.

STATE OF MIND
Purpose/knowledge/intent/recklessness/negligence is/are condition(s) of the mind, which cannot be seen and can only be determined by inferences from conduct, words or acts.
A state of mind is rarely susceptible of direct proof, but must ordinarily be inferred from the facts. It is the fact finders job to find that such proof has been furnished beyond a reasonable doubt by inference, which may arise from the nature of his/her acts and his/her conduct, and from all he/she said and did at the particular time and place, and from all of the surrounding circumstances.

PRESUMPTION OF INNOCENCE
This defendant(s), as are all defendants in criminal cases, is presumed to be innocent until proven guilty beyond a reasonable doubt.

REASONABLE DOUBT
The prosecution must prove its case by more than a mere preponderance of the evidence, yet not necessarily to an absolute certainty.

The State has the burden of proving the defendant guilty beyond a reasonable doubt.

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

Proof beyond a reasonable doubt is proof, for example, that leaves you firmly convinced of the defendants guilt. In this world, we know very few things with absolute certainty. In criminal cases the law does not require proof that overcomes every possible doubt.

2C:20-11 b.Shoplifting.
Shoplifting shall consist of any one or more of the following acts:
(1) For any person purposely to take possession of, carry away, transfer or cause to be carried away or transferred, any merchandise displayed, held, stored or offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of the possession, use or benefit of such merchandise or converting the same to the use of such person without paying to the merchant the full retail value thereof.
(2) For any person purposely to conceal upon his person or otherwise any merchandise offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of the processes, use or benefit of such merchandise or converting the same to the use of such person without paying to the merchant the value thereof.
(3) For any person purposely to alter, transfer or remove any label, price tag or marking indicia of value or any other markings which aid in determining value affixed to any merchandise displayed, held, stored or offered for sale by any store or other retail mercantile establishment and to attempt to purchase such merchandise personally or in consort with another at less than the full retail value with the intention of depriving the merchant of all or some part of the value thereof.
(4) For any person purposely to transfer any merchandise displayed, held, stored or offered for sale by any store or other retail merchandise establishment from the container in or on which the same shall be displayed to any other container with intent to deprive the merchant of all or some part of the retail value thereof.
(5 )For any person purposely to under-ring with the intention of depriving the merchant of the full retail value thereof.
(6 )For any person purposely to remove a shopping cart from the premises of a store or other retail mercantile establishment without the consent of the merchant given at the time of such removal with the intention of permanently depriving the merchant of the possession, use or benefit of such cart.
c.Gradation.
Shoplifting constitutes a crime of the second degree under subsection b. of this section if the full retail value of the merchandise is $75,000 or more, or the offense is committed in furtherance of or in conjunction with an organized retail theft enterprise and the full retail value of the merchandise is $1,000 or more.
(2) Shoplifting constitutes a crime of the third degree under subsection b. of this section if the full retail value of the merchandise exceeds $500 but is less than $75,000, or the offense is committed in furtherance of or in conjunction with an organized retail theft enterprise and the full retail value of the merchandise is less than $1,000.
(3) Shoplifting constitutes a crime of the fourth degree under subsection b. of this section if the full retail value of the merchandise is at least $200 but does not exceed $500.
(4) Shoplifting is a disorderly persons offense under subsection b. of this section if the full retail value of the merchandise is less than $200.

The value of the merchandise involved in a violation of this section may be aggregated in determining the grade of the offense where the acts or conduct constituting a violation were committed pursuant to one scheme or course of conduct, whether from the same person or several persons, or were committed in furtherance of or in conjunction with an organized retail theft enterprise.

Additionally, notwithstanding the term of imprisonment provided in N.J.S.2C:43-6 or 2C:43-8, any person convicted of a shoplifting offense shall be sentenced to perform community service as follows: for a first offense, at least ten days of community service; for a second offense, at least 15 days of community service; and for a third or subsequent offense, a maximum of 25 days of community service and any person convicted of a third or subsequent shoplifting offense shall serve a minimum term of imprisonment of not less than 90 days.
d. Presumptions. Any person purposely concealing uppercased merchandise of any store or other retail mercantile establishment, either on the premises or outside the premises of such store or other retail mercantile establishment, shall be prima facie presumed to have so concealed such merchandise with the intention of depriving the merchant of the possession, use or benefit of such merchandise without paying the full retail value thereof, and the finding of such merchandise concealed upon the person or among the belongings of such person shall be prima facie evidence of purposeful concealment; and if such person conceals, or causes to be concealed, such merchandise upon the person or among the belongings of another, the finding of the same shall also be prima facie evidence of willful concealment on the part of the person so concealing such merchandise.
Copyright 2016 Vercammen Law

American Eagle Outfitters Shoplifting Defenses

American Eagle Outfitters Shoplifting Defenses

The state must prove the Defendant had the knowing intent to commit a criminal act in a shoplifting case.
Sometimes the defendant was not aware that there was a criminal act being committed because of mental issues.

NJSA 2C: 4-2. Evidence of mental disease or defect admissible when relevant to element of the offense.
Evidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did not have a state of mind, which is an element of the offense. In the absence of such evidence, it may be presumed that the defendant had no mental disease or defect, which would negate a state of mind, which is an element of the offense.

Criminal Indictable and Disorderly Offense Penalties

Disorderly person criminal offenses- ex Simple Assault, shoplifting & cases in Municipal Court
Jail 2C: 43- 8 jail 6 month maximum
probation 1-2 year
community service 180 days maximum
mandatory costs, VCCB and other penalties
Disorderly- fines: 2C: 43- 3 $1,000 Fine maximum

There are many other penalties that the court must impose in criminal cases. There are dozens of other penalties a court can impose, depending on the type of matter.

Indictable Criminal Penalties [Felony type] [ Superior Court]
Jail potential Fine max Probation
1st degree 10- 20 years $200,000 [presumption of jail]
2nd degree 5-10 years $150,000 [presumption of jail]
3rd degree 3- 5 years $15,000 1 year- 5 year
4th degree 0- 18 months $10,000 1 year- 5 year

The NJ Model Jury charges set forth the elements of SHOPLIFTING [CONCEALMENT]
(N.J.S.A. 2C: 20-11b(2))

The statute provides in pertinent part that it is a crime for:
any person purposely to conceal upon his person or otherwise any merchandise offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of the processes, use or benefit of such merchandise or converting the same to the use of such person without paying to the merchant the value thereof.

In order for the finder of fact to find the defendant guilty of shoplifting, the State must prove each of the following elements beyond a reasonable doubt:
1. that defendant purposely concealed upon his person or otherwise any merchandise offered for sale by (name of commercial establishment);
2. that (name of commercial establishment) was a store or other retail mercantile establishment; and
3. that defendant did so with the purpose of depriving the merchant of the processes, use, or benefit of such merchandise [OR of converting such merchandise to his/her use] without paying the merchant the value thereof.

The first element that the State must prove beyond a reasonable doubt is that defendant purposely concealed upon his person or otherwise any merchandise offered for sale by any store or other retail establishment. The term conceal means to conceal merchandise so that, although there may be some notice of its presence, it is not visible through ordinary observation.1 The term merchandise means any goods, chattels, foodstuffs or wares of any type and description, regardless of the value thereof.2

A person acts purposely with respect to the nature of his or her conduct or a result of his conduct if it is the persons conscious object to engage in conduct of that nature or to cause such a result. That is, a person acts purposely if he or she means to act in a certain way or to cause a certain result. A person acts purposely with respect to attendant circumstances if the person is aware of the existence of such circumstances or believes or hopes that they exist.3
1 N.J.S.A. 2C:20-11a(6).
2 N.J.S.A. 2C:20-11a(3).
3 N.J.S.A. 2C:2-2(b)(1).

Purpose is a state of mind. A state of mind is rarely susceptible of direct proof, but must ordinarily be inferred from the facts. Therefore, it is not necessary that the State produce witnesses to testify that an accused said he/she had a certain state of mind when he/she engaged in a particular act. It is within the fact finders power to find that such proof has been furnished beyond a reasonable doubt by inference, which may arise from the nature of his/her acts and his/her conduct, and from all he/she said and did at the particular time and place, and from all of the surrounding circumstances.

The third element that the State must prove beyond a reasonable doubt is that defendant acted with the purpose of depriving the merchant of the processes, use or benefit of such merchandise [OR converting such merchandise to his/her use] without paying the merchant the value of the merchandise.

WHEN OFFENSE CHARGED REQUIRES A PURPOSEFUL OR KNOWING STATE OF MIND, CONTINUE CHARGE AS FOLLOWS:

Although the statute refers to mistake of fact or law as a defense, caselaw makes it clear that it is not genuinely a defense at all: instead, it is an attack on the prosecutions ability to prove the requisite mental state for at least one objective element of the crime. State v. Sexton, 160 N.J. 93, 99-100 (1999). Since it is obviously impossible for any single charge to explain precisely how the offered defense plays into the element[s] of every possible offense that mistake of fact or law could apply to (Sexton, 160 N.J. at 106), and at best can offer a more general charge on the subject of mistake of fact or law (State v. Pena, 178 N.J. 297, 319 (2004)), this model charge is organized by reference to the state of mind under N.J.S.A. 2C:2-2b contained in the offense charged by the State, and then by the degree to which the mistake of fact or law exonerates or mitigates the defendants guilt. As always, the trial court must tailor the precise type of mistake that defendant relies on to the facts of the particular crime or offense charged and the facts adduced at trial. State v. Concepcion, 111 N.J. 373, 379-380 (1988).
2 Since even an unreasonable mistake can negate the required state of mind for the charged offense, the statutory requirement that the defendant reasonably arrived at the conclusion underlying the mistake was eliminated and, therefore, is not referred to in this model charge. Sexton, 160 N.J. at 105; Pena, 178 N.J. at 306.
3 Sexton, 160 N.J. at 100; Pena, 178 N.J. at 306.

STATE OF MIND
Purpose/knowledge/intent/recklessness/negligence is/are condition(s) of the mind, which cannot be seen and can only be determined by inferences from conduct, words or acts.
A state of mind is rarely susceptible of direct proof, but must ordinarily be inferred from the facts. It is the fact finders job to find that such proof has been furnished beyond a reasonable doubt by inference, which may arise from the nature of his/her acts and his/her conduct, and from all he/she said and did at the particular time and place, and from all of the surrounding circumstances.

PRESUMPTION OF INNOCENCE
This defendant(s), as are all defendants in criminal cases, is presumed to be innocent until proven guilty beyond a reasonable doubt.

REASONABLE DOUBT
The prosecution must prove its case by more than a mere preponderance of the evidence, yet not necessarily to an absolute certainty.

The State has the burden of proving the defendant guilty beyond a reasonable doubt.

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

Proof beyond a reasonable doubt is proof, for example, that leaves you firmly convinced of the defendants guilt. In this world, we know very few things with absolute certainty. In criminal cases the law does not require proof that overcomes every possible doubt.

2C:20-11 b.Shoplifting.
Shoplifting shall consist of any one or more of the following acts:
(1) For any person purposely to take possession of, carry away, transfer or cause to be carried away or transferred, any merchandise displayed, held, stored or offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of the possession, use or benefit of such merchandise or converting the same to the use of such person without paying to the merchant the full retail value thereof.
(2) For any person purposely to conceal upon his person or otherwise any merchandise offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of the processes, use or benefit of such merchandise or converting the same to the use of such person without paying to the merchant the value thereof.
(3) For any person purposely to alter, transfer or remove any label, price tag or marking indicia of value or any other markings which aid in determining value affixed to any merchandise displayed, held, stored or offered for sale by any store or other retail mercantile establishment and to attempt to purchase such merchandise personally or in consort with another at less than the full retail value with the intention of depriving the merchant of all or some part of the value thereof.
(4) For any person purposely to transfer any merchandise displayed, held, stored or offered for sale by any store or other retail merchandise establishment from the container in or on which the same shall be displayed to any other container with intent to deprive the merchant of all or some part of the retail value thereof.
(5 )For any person purposely to under-ring with the intention of depriving the merchant of the full retail value thereof.
(6 )For any person purposely to remove a shopping cart from the premises of a store or other retail mercantile establishment without the consent of the merchant given at the time of such removal with the intention of permanently depriving the merchant of the possession, use or benefit of such cart.
c.Gradation.
Shoplifting constitutes a crime of the second degree under subsection b. of this section if the full retail value of the merchandise is $75,000 or more, or the offense is committed in furtherance of or in conjunction with an organized retail theft enterprise and the full retail value of the merchandise is $1,000 or more.
(2) Shoplifting constitutes a crime of the third degree under subsection b. of this section if the full retail value of the merchandise exceeds $500 but is less than $75,000, or the offense is committed in furtherance of or in conjunction with an organized retail theft enterprise and the full retail value of the merchandise is less than $1,000.
(3) Shoplifting constitutes a crime of the fourth degree under subsection b. of this section if the full retail value of the merchandise is at least $200 but does not exceed $500.
(4) Shoplifting is a disorderly persons offense under subsection b. of this section if the full retail value of the merchandise is less than $200.

The value of the merchandise involved in a violation of this section may be aggregated in determining the grade of the offense where the acts or conduct constituting a violation were committed pursuant to one scheme or course of conduct, whether from the same person or several persons, or were committed in furtherance of or in conjunction with an organized retail theft enterprise.

Additionally, notwithstanding the term of imprisonment provided in N.J.S.2C:43-6 or 2C:43-8, any person convicted of a shoplifting offense shall be sentenced to perform community service as follows: for a first offense, at least ten days of community service; for a second offense, at least 15 days of community service; and for a third or subsequent offense, a maximum of 25 days of community service and any person convicted of a third or subsequent shoplifting offense shall serve a minimum term of imprisonment of not less than 90 days.
d. Presumptions. Any person purposely concealing uppercased merchandise of any store or other retail mercantile establishment, either on the premises or outside the premises of such store or other retail mercantile establishment, shall be prima facie presumed to have so concealed such merchandise with the intention of depriving the merchant of the possession, use or benefit of such merchandise without paying the full retail value thereof, and the finding of such merchandise concealed upon the person or among the belongings of such person shall be prima facie evidence of purposeful concealment; and if such person conceals, or causes to be concealed, such merchandise upon the person or among the belongings of another, the finding of the same shall also be prima facie evidence of willful concealment on the part of the person so concealing such merchandise.
Copyright 2016 Vercammen Law