Kenneth Vercammen is author of the ABA book "Criminal Law Forms".
New clients email us evenings and weekends go to www.njlaws.com/ContactKenV.htm
He is a Middlesex County trial attorney who has published 130 articles in national and New Jersey publications on Criminal Law and litigation topics. He was awarded the NJ State State Bar Municipal Court Practitioner of the Year. He lectures and handles criminal cases, Municipal Court, traffic and other litigation matters.
In this appeal from a conviction for possession of marijuana with intent to distribute, we address the question of whether the holding in State v. Cain, 224 N.J. 410 (2016), should be applied retroactively to cases still pending on appeal.
Based upon our review of the language used by the Supreme Court in Cain and in State v Simms, 224 N.J. 393 (2016), as well as other post-Odom decisions by the Court, we conclude Cain's holding must be given pipeline retroactivity, and applied to all cases pending on direct appeal.
Defendant was indicted on a single count of fourth-degree operating a motor vehicle during the period of license suspension for a second or subsequent conviction for driving while intoxicated, in violation of N.J.S.A. 2C:40-26(b). The State appeals from the order of the trial court which admitted defendant into PTI over the prosecutor's veto. We reverse. The prosecutor's decision to reject defendant's application for admission into PTI did not constitute "a patent and gross abuse of discretion" as defined by the Supreme Court in State v. Roseman, 221 N.J. 611, 625 (2015).
However, we reject the prosecutor's characterization of the fourth degree offense under N.J.S.A. 2C:40-26(b) as falling within the crimes that by their very nature carry a presumption against admission into PTI.
STATE OF NEW JERSEY IN THE INTEREST OF JUVENILE, I.C.
A-5119-13T1
In this appeal and cross-appeal, we address the issue of whether a juvenile was entitled to credit on his suspended sentence for the time he spent in a residential community home program as part of his probationary sentence to the Juvenile Intensive Supervision Program ("JISP"). We also consider whether the juvenile should have been granted credit on his sentence for the period during which he participated in the JISP following his completion of the community home program.
Based upon our review of the record and applicable law, we hold that the juvenile was not entitled to credits for either of these periods. Therefore, we affirm the trial judge's decision denying the juvenile's request for credits for his time in the community home program, and reverse the judge's decision granting the
STATE OF NEW JERSEY VS. DHARUN RAVI
A-4667-11T1/A-4787-11T1(CONSOLIDATED)
Defendant was convicted of multiple counts of invasion of
privacy, bias intimidation, hindering prosecution, and tampering
with evidence. The jury found defendant guilty on four counts
directly predicated on N.J.S.A. 2C:16-1(a)(3), a now
constitutionally defunct law pursuant to the Supreme Court’s
holding in State v. Pomianek, 221 N.J. 66, 69 (2015). The State
conceded that the convictions under these four counts are void
as a matter of law.
Defendant raises an issue not addressed in State v. Hudson,
209 N.J. 513, 517 (2012). We consider whether defendant, who
received a second extended-term sentence for a crime he
committed while on bail awaiting trial on the offense for which
he received his first extended-term sentence, was "in custody"
within the meaning of N.J.S.A. 2C:44-5b when he committed the
second offense. Because we conclude defendant was "in custody"
within the meaning of N.J.S.A. 2C:44-5b when he committed the
second offense, we reject his claim that his second extended
term constituted an illegal sentence.
STATE OF NEW JERSEY VS. AMBOY NATIONAL BANK ACCOUNT
NUMBER XXX-XXXX-2 VALUED AT FOUR HUNDRED THIRTY-SIX
THOUSAND EIGHT HUNDRED FORTY-FIVE DOLLARS AND
EIGHTY-SIX CENTS IN UNITED STATES CURRENCY, ET AL.
A-0703-14T2
This civil forfeiture action concerns the seizure of $846,000, $722,000 of which represented "entry fees" to participate in sports pools. The claimant admitted operating sports pools for approximately twenty years but denied the pools were illegal. The New Jersey Constitution prohibits the Legislature from authorizing gambling except through referendum and several exceptions established by the Constitution. The pools operated by claimant did not fall within any of these exceptions. We further conclude the State met its burden to show by a preponderance of the evidence that (1) there was a direct causal connection between the money seized and the promotion of gambling and (2) the promotion of gambling involved constituted an indictable offense under N.J.S.A. 2C:37-2. We further reject claimant's argument that the court erred in failing to allocate
the funds seized between illegal and legal purposes, noting claimant failed to present sufficient credible evidence in response to the State's motion for summary judgment to permit such an allocation. Finally, we reject claimant's argument that the State violated the notice provision of N.J.S.A. 2C:64-3 by failing to give notice to the players whose entry fees had been deposited into the joint accounts held by claimant and were part of the funds seized.
Defendant's counsel's failure to read to him and have him answer question seventeen on the plea form, which would have conveyed to defendant the risk of deportation, resulted in ineffective assistance of counsel and requires his plea be vacated. Although counsel provided no affirmative misadvice as discussed in Nuñez-Valdéz, counsel's failure to review the question on the plea form with defendant, who could not speak or read English, requires reversal.
RIGOBERTO MEJIA VS. NEW JERSEY DEPARTMENT OF CORRECTIONS
A-0710-13T4
Rigoberto Mejia, who is serving a mandatory-minimum state prison term of forty years, appeals from a cumulative sanction of three-and-one-half-years in administrative segregation for throwing bodily fluids on two corrections officers and related offenses. Although he has been released from restrictive custody, the court reverses the sanctions imposed, determining that the regulation allowing a hearing officer unfettered discretion in deciding whether or not to consider the enumerated sanctioning factors is not permissible. The court also expresses concern over the mental health treatment provided to Mejia, whose first language is not English, as well as the fact that Mejia's administrative appeal, written in Spanish, was initially affirmed without translation.
After three days of deliberations, a jury found defendant guilty of first degree distribution of cocaine and related offenses. The central and dispositive issue in this appeal concerns the trial judge’s response to criticism of the foreperson’s leadership style by a group of nine jurors. We hold the judge erred when he allowed the nine jurors to select a spokesperson to convey their grievances, instead of interviewing each juror separately. This error influenced the judge’s characterization of the foreperson as an "obstructionist."
The judge misapplied our decision in State v. Rodriguez, 254 N.J. Super. 339 (App. Div. 1992), to replace juror number 1 as foreperson. Although well-intended, the judge’s decision had the capacity of being perceived by the foreperson as a retaliatory act intended to coerce her to change her stance in the deliberations. The judge's bias in favor of unanimity influenced the impermissibly coercive steps he took against juror number one. State v. Figueroa, 190 N.J. 219, 237-38 (2007).
The State is required to disclose all discovery in its possession when it seeks to waive jurisdiction and transfer a case from juvenile to adult court.
The record contains ample evidence to support the Appellate Division’s conclusion that Betty Cushing did not have actual authority to consent to the search of defendant’s room, and Betty could not have conferred through any power of attorney an authority that she did not possess herself. In addition, it was not objectively reasonable for Officer Ziarnowski to rely on an apparent authority by Mylroie as the basis for
valid third-party consent to his initial search of defendant’s bedroom.
As a long-standing feature of New Jersey law, telephone billing records are entitled to protection from government access under the State Constitution. Because they reveal details of one’s private affairs that are similar to what bank and credit card records disclose, these areas of information should receive the same level of constitutional protection and be available based on a showing of relevance. Direct judicial oversight of the process is required to guard against the possibility of abuse, and in order to obtain a court order requiring production of telephone billing records, the State must present specific and articulable facts to demonstrate that the records are relevant and material to an ongoing criminal investigation.
The Pretrial Intervention Program (PTI) provides defendants, generally first-time offenders, with opportunities for alternatives to the traditional criminal justice process of ordinary prosecution. PTI seeks to render early rehabilitative services, when such services can reasonably be expected to deter future criminal behavior. The PTI program is based on a rehabilitative model that recognizes that there may be an apparent causal connection between the offense charged and the rehabilitative needs of a defendant. Further, the rehabilitative model emphasizes that social, cultural, and economic conditions often result in a defendants decision to commit a crime. Simply stated, PTI strives to solve personal problems which tend to result from the conditions that appear to cause crime, and ultimately, to deter future criminal behavior by a defendant.
What Are the Benefits of the Pretrial Intervention Program (PTI)?
If PTI is successfully completed, there is no record of conviction and the defendant avoids the stigma of a criminal record. Although no record of a conviction exists, a defendant may want to file for an expungement to remove any record of the original arrest. Early intervention allows rehabilitative services to be provided soon after the alleged offense, in an attempt to correct the behavior that led to the offense. Some of the costs associated with the formal court process are eliminated through acceptance into PTI. PTI provides early resolution of a case, which serves the interests of the victim, the public and the defendant.
PTI reduces the burden on the court and allows resources to be devoted to more serious criminals.
What are the Conditions for Participation in Pretrial Intervention?
Supervision under the PTI program may run from 6 months to three years and is provided by the Probation Division. Certain standard conditions are imposed on those accepted into PTI, such as, random urine monitoring, and assessments of fees, penalties and fines. Additional conditions may also be imposed to require the performance of community service, payment of restitution, and submission to psychological and/or drug and alcohol evaluations and compliance with recommended treatment programs.
If a defendant successfully completes all the conditions of PTI, then the prosecutor dismisses the original charges on the recommendation of the Criminal Division Manager with consent, and there is no record of conviction. If a defendant does not successfully complete the conditions of PTI, then the defendant is terminated from the PTI program and the case is returned to the ordinary course of prosecution.
Who is Eligible for Pretrial Intervention (PTI)?
Any defendant who is charged with an indictable offense may apply.
Admission guidelines stated in the Court Rules set the following criteria:
Age - PTI is designed for adults.
Jurisdiction - Only defendants charged with indictable offenses in New Jersey may apply.
Minor Violations - Charges that would likely result in a suspended sentence without probation or a fine are generally not eligible. Those charged with ordinance, health code and other similar violations are not eligible.
Prior Record of Convictions - PTI generally excludes defendants who have been previously convicted.
Parolees and Probationers Generally excluded without prosecutors consent and considered only after consultation with parole and probation departments.
Defendants Previously Diverted - Excludes defendants who have previously been granted a diversionary program or conditional discharge.
How Does One Apply for Pretrial Intervention?
Applications to PTI must be made no later than 28 days after indictment. There is a $75 non-refundable application fee. In certain instances, this fee may be waived. The application process includes an interview with the defendant by a staff member of the Criminal Division of the Superior Court. A written report is prepared detailing the decision for admittance or rejection into the PTI program. When a defendant is accepted into PTI on the recommendation of the Criminal Division, with the consent of the prosecutor and the defendant, the judge may postpone all further proceedings against the defendant for a period not to exceed 36 months. The applicant may appeal a rejection to the Presiding Judge of the Criminal Division within 10 days of the rejection. http://www.njlaws.com/pretrial-intervention.htm
2C:12-3. Terroristic threats a. A person is guilty of a crime of the third degree if he threatens to commit any crime of violence with purpose to terrorize another or to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or in reckless disregard of the risk of causing such terror or inconvenience.
b. A person is guilty of a crime of the third degree if he threatens to kill another with purpose to put him in imminent fear of death under circumstances reasonably causing the victim to believe the immediacy of the threat and the likelihood that it will be carried out
More info at http://www.njlaws.com/2C-12-3.html
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
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Avenue, Edison NJ 08817
732-572-0500
