Arrested in Edison? Hire an Edison Criminal defense Attorney

Arrested in Edison? Hire an Edison Criminal defense Attorney

Kenneth Vercammen's Law Office represents individuals charged with criminal, drug offenses, and serious traffic violations throughout New Jersey. Kenneth Vercammen was the NJ State Bar Municipal Court Attorney of the Year and past president of the Middlesex County Municipal Prosecutor's Association.

Try to Avoid Some of the 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. 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. You may be required to do Community Service.

Don't give up! The Law Office of Kenneth Vercammen can provide experienced attorney representation for criminal and serious motor vehicle violations.

When your job or driver's license is in jeopardy or you are facing thousands of dollars in fines, surcharges and car insurance increases, you need excellent legal representation.

Kenneth Vercammen & Associates, P.C.

2053 Woodbridge Ave.

Edison, NJ 08817

732-572-0500

Toll Free 1-800-NJLAWS7 (1-800-655-2977)

Personal Injury and Criminal on Weekends 732-261-4005

BeNotGuilty. com

Too often lawyers throw up their hands when a client presents a ticket involving Drug Possession, Driving While Suspended, DWI or Assault. While defense of criminal court charges involving serious motor vehicle charges may become an involved process requiring commitment and persistence, there are a number of viable defenses and arguments that can achieve a successful result. Rather than simply suggest that a client plead guilty and avoid trial, an attorney should accept the challenge and apply his best legal talents to protect the client’s rights.

1. The In-Office Interview at the Law Office

We advise potential clients to bring in a copy of the complaint, all their papers in connection with their case, accident report, and any documents they received from the Motor Vehicle Commissions. Often times I will instruct them to write a confidential 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, we have them 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 and prior motor vehicle convictions. Our interview sheet also asks if there is anything else important, such as a medical condition that affects their case. This form will also let us know whether or not the client will follow instructions and cooperate with us.

If they refuse to provide information we may have a problem client.

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 country. 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.

2. Retaining the Attorney

             Rule 1:11-2 of the 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 written information explaining how to appear in court, information on surcharges, information on points, and information regarding substance abuse treatment, if applicable.

Once we receive our retainer (are paid), 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/district attorney and court and hand a copy to the client. We occasionally call the court to advise them that we will be handling the case and to inquire who handles discovery. We check the Lawyers Diary to determine who are the judges and prosecutor/district attorneys for the county or town. It is important to learn about the judge and the prosecutor.

We require a great deal of cooperation from our clients in an effort to help keep their costs reasonable. 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.

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 court should impose the minimum license suspension. We recommend they obtain a Motor Vehicle Abstract. This provides us with information for mitigation of penalties and also provides information to be considered by the judge in sentencing.

3. Post Interview Work

             Many states have programs for first time offenders who have never previously been arrested or previously convicted of a criminal offense. Again, to avoid embarrassment it is a good idea to speak with the prosecutor/ district attorney and the police officer because they may have a criminal abstract to indicate that the client is not eligible for a diversions type program.  We also make a Motion to Suppress where there is a question regarding the validity of a stop or search. Any other Motions to Dismiss should be made in writing such as statue 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 in alcohol or drugs, we can make a Motion in Limine or suggest a pre-trial conference. It is often a good idea to try to know how the judge will decide in order to save us a three-hour trial on a complicated case. If the court rules against us in the Motion in Limine we can enter a guilty plea contingent upon reserving your right to appeal on that one issue.

4. Discovery Phase

             Oftentimes we do not receive all of the discovery that we request. We send a letter to the prosecutor requesting additional discovery and request that the discovery be provided within 10 days. If we do not receive the discovery with 10 days then we prepare a Motion to Compel Discovery.

             In the case involving essential witnesses, we occasionally 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 cannot testify if the witness provides an inconsistent statement but our law clerks can testify. I sometimes speak to friendly witnesses myself later to make a decision to determine whether or not the witnesses are credible.

Upon receiving discovery, we forward a photocopy of all discovery to our client. We then discuss with the client whether or not they have a reasonable prospect of winning.

In drunk driving cases we review the videotape with the client prior to the trial date and sometimes make arrangements to retain an expert.

5. Preparing for Court

             If it is a drug case, we should 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, in a court where there is only one prosecutor you should call the criminal court prosecutor ahead of time to see if a matter can be worked out or plea bargained. Some Criminal prosecutors in lower courts work part time and are not compensated for the many telephone calls they get in their offices.                  

             If we discover a favorable case, we make a copy for the judge, prosecutor, and client. Never assume the part time prosecutor or judge is familiar with all the laws. We can 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. It is better to be over-prepared than under-prepared.

             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, drug possession, assault, and careless driving.

             When we receive the hearing notice we send a follow up reminder to the client to be on time, bring all papers and call 24 hours ahead to confirm the case is still on the calendar. The client should be prepared and look neat. The Grateful Dead and Budweiser T-Shirts should be replaced with something that looks presentable. They should have their pregnant wives sitting next to them.                                    

             Preparation is the key to winning cases or convincing the prosecutor of exceptional defenses. Upon arrival at court, we will attempt to ascertain if the police officer is available. Sometimes the police officer is on vacation, retired, or suspended. This may assist your ability to work out a satisfactory arrangement.

             There is no prohibition against speaking with States witnesses in a non-threatening way. Outside of the courtroom, I usually call out the name of the non-law enforcement States witnesses to determine what their version of the facts are. If we have an excellent trial issue but believe the judge is going to rule against us, we bring an appeal notice and file it with the Court on the Record. I keep in my car blank forms for Order to Compel Discovery, Order Mark Try or Dismiss, Order to be Relieved, and an Appeal Notice.

6. Plea to a Lesser Defense

             If the client is going to enter a guilty plea to an offense, it is important they understand what the offense is and put a factual basis on the record.  The Judge will be angry if a person is pleading guilty to a drunk driving case and the judge asked them what he had to drink, the person insists he only had one beer. The judge will send us back to our seat and must refuse to take the guilty plea unless an adequate factual basis is put on the record.

Having previously obtained for my clients their favorable background, I usually put on the record reasons why the judge should give them the minimum penalties.                                            

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.

             7. Conclusion

Whether or not we have a trial or there is a plea to reduce the charge, I wish to walk out knowing I did the best you could for the client. Even if I lose, I want to have been such an articulate advocate that the client walks out saying my attorney is great but the judge is wrong. We try to be innovative and prepare new arguments. We handle a substantial amount of criminal court and personal injury cases and have put case law and certain legal defenses on our website: www.NJLaws.com.

             About the Author: Kenneth A. Vercammen is an Edison, Middlesex County trial attorney who has published 125 articles in national and New Jersey publications on criminal court and litigation topics.

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.                        

            Drug offenses: in addition to above penalties, mandatory minimum $500 DEDR penalty, mandatory lab fee and other court costs over $200, mandatory 6 month- 2 year loss of license, Probation, drug testing and other penalties. If attorney's Conditional Discharge motion is granted for first time offender. penalty can be reduced. In certain drug cases, the fine can be up to $75,000.

-Petty Disorderly person - 30 days jail   maximum

Petty DP $500 max Fine, VCCB and other penalties

            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

            There are many other penalties that the court must impose in criminal case.  There are dozens of other penalties a court can impose, depending on the type of matter. Read www.njlaws.com/jail_for_crimes_and_disorderly_conduct.html

            If you or a family member are charged with a criminal offense, you should retain an experienced criminal attorney to argue to reduce the penalties! 

Research by:    KENNETH  VERCAMMEN & ASSOCIATES, PC

ATTORNEY AT LAW

 2053 Woodbridge Ave.

Edison, NJ 08817

(Phone) 732-572-0500

More information on Fines, jail and penalties on website: www.njlaws.com

[rev 10/17/13  Fines, Jail penalty criminal]                                                                                                                                                                           

State v. David M. Gibson (A-27-12; 070910)

State v. David M. Gibson (A-27-12; 070910)

 There is insufficient evidence in the record to
support a finding that Officer Comegno had probable
cause to arrest Gibson for defiant trespass;
therefore, the subsequent search at the stationhouse
was unconstitutional and the drug evidence seized
during the search must be suppressed. 1-7-14

State of New Jersey v. Reinaldo Fuentes

State of New Jersey v. Reinaldo Fuentes (A-18-12;
070729)

 Because the trial court did not adequately explain its
findings with respect to the aggravating factors, or
its balancing of the aggravating and mitigating
factors pursuant to N.J.S.A. 2C:44-1(a) and (b), the
matter is remanded for resentencing. 1-7-14

STATE OF NEW JERSEY VS. IVONNE SAAVEDRA

STATE OF NEW JERSEY VS. IVONNE SAAVEDRA
 A-1449-12T4

Defendant was employed by the North Bergen Board of
Education as a clerk to the child study team. She was
indicted with one count of second-degree official
misconduct and one count of third-degree theft for
allegedly taking confidential student records to assist her
attorney in the prosecution of her civil employment
discrimination claims against her employer. Relying on
Quinlan v. Curtiss-Wright Corp., 204 N.J. 239 (2010),
defendant unsuccessfully moved to dismiss the indictment
before the trial court.

We granted leave to appeal and now affirm. We reject
defendant's argument that she had an absolute right to take
confidential student records to support her wrongful
termination suit against the Board. Quinlan does not
establish a bright-line rule decriminalizing conduct that
is otherwise sufficient to support an indictment under
State v. Hogan, 144 N.J. 216 (1996). The trial judge was
not required to apply the multi-factor test in Quinlan to
determine whether the State presented a prima facie case to
support the indictment against defendant. Defendant is
free, however, to raise Quinlan at trial to negate the
state of mind requirements of official misconduct under
N.J.S.A. 2C:30-2a and theft under N.J.S.A. 2C:20-2b(2)(g),
as an affirmative defense.

Judge Simonelli dissents. She would have dismissed the
indictment with prejudice on fundamental fairness grounds. 12/24/13

STATE OF NEW JERSEY V. TIMOTHY ADKINS

STATE OF NEW JERSEY V. TIMOTHY ADKINS
 A-5748-12T4/A-5749-12T4(CONSOLIDATED)

Addressing the impact of Missouri v. McNeely, ___ U.S.
___, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013), on pending
cases involving warrantless blood tests, we reversed a
trial court order suppressing blood evidence in a DWI and
assault-by-auto case. Consistent with long-standing
rulings of the New Jersey Supreme Court, the police
obtained the blood sample from defendant without a search
warrant. Thereafter, the United States Supreme Court
unexpectedly changed the legal landscape by issuing a
ruling that construed the Fourth Amendment more broadly
than our Court.

On these facts, under Davis v. United States, ___ U.S.
___, 131 S. Ct. 2419, 180 L. Ed. 2d 285 (2011), suppression
would not be the appropriate remedy under federal
constitutional law, because the New Jersey police were
acting lawfully under established New Jersey precedent at
the time of the search. Further, had our own Supreme Court
issued the McNeely ruling as a construction of the New
Jersey Constitution, the ruling would not have been applied
retroactively. Under these unusual and very limited
circumstances, we held that suppression of the evidence in
this case was not required. 12/20/13

State of New Jersey v. Oscar Porter (A-91-11; 069223)

State of New Jersey v. Oscar Porter (A-91-11; 069223)

 With respect to the claim of ineffective assistance of
trial counsel based on failure to investigate an alibi
defense, defendant made out a prima facie showing and
raised material facts in dispute, therefore entitling
him to an evidentiary hearing on that issue. 12-19-13

J.B., ET AL. VS. NEW JERSEY STATE PAROLE BOARD

J.B., ET AL. VS. NEW JERSEY STATE PAROLE BOARD

A-5435-10T2/ A-1459-11T2/ A-2138-11T3/ A-2448-11T2/A-3256-11T2(CONSOLIDATED)

Appellants are individuals who have been convicted of sexual offenses, have completed their respective prison terms, and are now being monitored by respondent New Jersey State Parole Board as offenders who are subject to either parole supervision for life ("PSL") or its statutory predecessor, community supervision for life ("CSL"). N.J.S.A. 2C:43-6.4. They challenge the constitutionality of certain terms of supervision the Parole Board has imposed upon them and other released sex offenders subject to CSL or PSL, mainly (1) restrictions on access to social media or other comparable web sites on the Internet; and (2) mandated submission to periodic polygraph examinations.

In the published portion of our opinion, we reject appellants' facial challenges to the Internet access restrictions, subject to their right to bring future "as-applied" challenges if they avail themselves of the Parole Board's procedures for requesting specific permission for more expanded Internet access and are then denied such permission.

As indicated in the unpublished portion of our opinion, we do not decide at this time the merits of appellants' constitutional attack upon the polygraph requirements. Instead, we refer that subject matter to the trial court for supplemental proceedings, pursuant to Rule 2:5-5(b), for the development of an appropriate record, including scientific or other expert proofs, and for fact-finding. Such proofs and fact-finding shall focus upon the alleged therapeutic, rehabilitative, and risk management benefits of polygraph testing when it is conducted within the specific context of post-release oversight of sex offenders. 11-26-13

 

State of New Jersey v. Troy N. Tate (A-99-11; 069314)

 State of New Jersey v. Troy N. Tate (A-99-11; 069314)

 A conviction for possession of a weapon for an
unlawful purpose must merge with a conviction for
aggravated manslaughter when the evidence does not
support the existence of another unlawful purpose for
possession of the weapon. 11-12-13

STATE OF NEW JERSEY VS. ANGELIQUE STUBBS ET AL.

 STATE OF NEW JERSEY VS. ANGELIQUE STUBBS ET AL.
AND STATE VS. JULES L. STUBBS ET AL.
 A-1199-10T2/A-2942-10T2(CONSOLIDATED)

Husband and wife, Jules and Angelique Stubbs, were
convicted of various CDS-related offenses. As to the wife,
we remand for a hearing as to the admissibility of the form
United States Currency Seizure Report, which she signed,
pertaining to $4831 in cash seized from defendants' home
along with a substantial quantity of drugs. The State
argued that the wife, by signing the form, claimed
ownership of the cash, which demonstrated she joined in her
husband's drug-related activities. We conclude the form
must be viewed as an adoptive admission under N.J.R.E.
803(b)(2); and, since the form was a statement of a
criminal defendant, N.J.R.E. 803(b), the State as proponent
was required to show, in a preliminary hearing pursuant to
N.J.R.E. 104(c), that the statement was admissible. To do
so, the State must show the wife was aware of and
understood the contents of the allegedly adopted statement,
and she unambiguously assented to it. We order a new trial
for the wife only if the trial court determines on remand
that the form was not properly admitted as an adoptive
admission. 11-07-13

State of New Jersey v. Amir A. Andrews

State of New Jersey v. Amir A. Andrews
(A-105-11;069594)

Gilmore’s single, bright-line remedy has proven
ineffective to fully and fairly respond to the use of
constitutionally impermissible peremptory challenges.
The Court modifies Gilmore and hereby permits trial
judges to choose from a broader set of remedies to
address the impermissible use of peremptory
challenges. 10-28-13

State of New Jersey v. Gene Hinton (A-3/4-12; 070386)

 State of New Jersey v. Gene Hinton (A-3/4-12; 070386)

 Where, as here, an eviction proceeding has advanced to
the point that a warrant of removal has been executed,
a tenant does not have a reasonable expectation of
privacy in the premises. Therefore, the police action
in Hinton’s apartment was not a “search” under either
the Fourth Amendment of the United States Constitution
or Article I, Paragraph 7 of the New Jersey
Constitution. 10-24-13

STATE OF NEW JERSEY VS. LARRY R. HENDERSON

  STATE OF NEW JERSEY VS. LARRY R. HENDERSON


A-5482-11T3

In its landmark decision in this case, State v. Henderson, 208 N.J. 208 (2011), the Supreme Court remanded to the trial court for a new Wade hearing. Applying the Court's new state constitutional framework for such matters, the trial court denied suppression of the out-of-court eyewitness identification evidence used to convict defendant. On appeal, defendant argued, among other things, that the new framework implicitly imposed on the

prosecution the burden of proving reliability by "clear and convincing evidence." In light of the language of the Supreme Court's opinion that, once a defendant provides evidence of suggestiveness the prosecution must "offer proof to show that the proffered eyewitness identification is reliable," id. at 289, the court rejected this argument, viewing the prosecution's burden as little different and no more onerous than the "burden of producing evidence" described in N.J.R.E. 101(b)(2).

Affirmed. 10-17-13
 

STATE OF NEW JERSEY VS. DAVID GRANSKIE, JR. A-6278-11T4

 STATE OF NEW JERSEY VS. DAVID GRANSKIE, JR.

A-6278-11T4

The question presented by this appeal is whether respondent AIG Casualty Company, which paid workers' compensation benefits to petitioner, Kelly Greene, is entitled to a lien against her settlement with a third-party tortfeasor pursuant to Section 40 of the Workers' Compensation Act, N.J.S.A. 34:15-40, even though her injury was ultimately noncompensable.

Nothing in either Section 15 or Section 40 conditions reimbursement of the claim from a third-party settlement on whether the benefits the employer paid were owed in the first place. Read in conjunction, Section 40 and our collateral source statute, N.J.S.A. 2A:15-97, plainly require that a third-party tortfeasor be held to the full extent of its liability for a workplace injury, that the employer be repaid for benefits paid to the injured worker pursuant to the Act without regard to the compensability of the claim, and that the employee not obtain a double recovery. AIG is entitled to its lien. 10-16-13 

State v. Osborne S. Maloney (A-64-11; 068877)

 State v. Osborne S. Maloney (A-64-11; 068877)

 The trial court did not err by failing to sua sponte
instruct the jury on accomplice liability and by
rejecting defendant’s request to charge the jury on
the asserted lesser-included offenses of attempted
theft by receiving stolen property and conspiracy to
receive stolen property. 10-16-13

STATE OF NEW JERSEY VS. L.A. A-6175-10T4

STATE OF NEW JERSEY VS. L.A.

A-6175-10T4

In this PCR case, presented after an evidentiary hearing on remand, we explicate the familiar Strickland prejudice standard, requiring a defendant to show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984). We note the test is not outcome determinative; "reasonable probability" does not mean more likely than not; it means "probability sufficient to undermine confidence in the outcome." Ibid. We address the prejudice prong's application to a claim that counsel failed to call an exculpatory witness. We conclude a court must assess the absent or uncalled witness's credibility in light of the totality of the circumstances. The issue is not whether the absent witness is more credible than the State's witness; it is whether the absent witness'stestimony sufficiently undermined confidence in the result. The court's ultimate goal is to assess the challenged trial's fairness and reliability.

Here, the trial judge found the absent witness credible, but denied relief because he perceived the victim-witness more credible. We reverse the court's denial of PCR because the court failed to consider the totality of circumstances, and misapplied the test for determining prejudice under Strickland. 10-08-13

State of New Jersey v. Terrence Miller (A-35-11; 068558)

State of New Jersey v. Terrence Miller

(A-35-11; 068558)

The trial judge’s denial of an adjournment did not violate defendant’s constitutional right to effective representation, was not an abuse of discretion, and did not violate principles of fundamental fairness. 10-2-13

New law finally establishes a Conditional Dismissal Program in Municipal Court.

New law finally establishes a Conditional Dismissal Program in Municipal Court. Ken Vercammen testified in favor of the passage before the Assembly Judiciary Committee.

Governor Chris Christie on September 9 signed into law legislation co-sponsored by Senator Christopher “Kip” Bateman (R-Hunterdon, Mercer, Middlesex and Somerset) to provide a conditional assistance program in Municipal Court for certain first-time offenders. The law takes affect 120 days after signing [approx December 9]

“This initiative will give a broader range of first-time offenders who have committed a minor offense an opportunity to turn their lives around,” Bateman said. “The program will help foster participants’ rehabilitation and future success by giving them appropriate penalties without having the offense be a part of their permanent criminal record.”

Under prior law, the only offenses eligible for a conditional discharge are certain drug-related offenses. Bateman’s S-2588 allows discharge for many non-drug offenses, such as disorderly person’s offenses, which have not been able to participate in similar programs before.

“First-time offenders who are screened to meet the eligibility requirements will be able to use the program to avoid having a record that cannot be expunged until years after the sentence is served,” Bateman added. “The legislation will also help courts efficiently adjudicate cases without costly logjams.”

Contact Kenneth Vercammen’s Law Office if charged with a criminal offense 732-572-0500

Under this law, conditional dismissal is not available to any person who has previously participated in a conditional discharge, conditional dismissal, or supervisory treatment program such as PTI. In addition, a person is not eligible for conditional dismissal if the offense for which the person is charged involved:

•  organized criminal or gang activity;

•  a continuing criminal business or enterprise;

•  a breach of the public trust by a public officer or employee;

•  domestic violence;

•  an offense against an elderly, disabled or minor person;

•  an offense involving driving or operating a motor vehicle while under the influence of alcohol, intoxicating liquor, narcotic, hallucinogenic or habit-producing drug;

•  animal cruelty;

•  or any disorderly persons offense or petty disorderly persons offense under chapter 35 or 36 of the Criminal Code.

        After taking into consideration the eligibility criteria, the defendant’s criminal history and the prosecutor’s recommendation, the court may, approve the defendant’s participation in the conditional dismissal program and place the defendant under a probation monitoring status for a period of one year. 

      This law establishes a conditional dismissal program in municipal court similar to the existing supervisory treatment programs for pre-trial intervention and conditional discharge.

      Previously, the supervisory treatment programs for pre-trial intervention and conditional discharge allow the court to suspend proceedings against eligible defendants while the defendants participate in supervisory treatment.  Persons who are charged with indictable offenses (crimes of the first, second, third, or fourth degree) may be eligible for pretrial intervention (“PTI”) pursuant to N.J.S.2C:43-12 et seq.  Persons charged with certain disorderly persons or petty disorderly persons drug offenses may be eligible for conditional discharge pursuant to N.J.S.2C:36A-1.  If the defendant violates a term or condition of supervisory treatment, the court may enter a judgment of conviction or, where the defendant did not previously plead guilty and was not previously found guilty, resume the criminal proceedings.  If the defendant successfully completes the program, the criminal charges are dismissed.

      CONDITIONAL DISMISSAL PROGRAM. This law establishes a similar diversion program in municipal court to be known as the conditional dismissal program.  Under the provisions of the law, a defendant who is charged with a petty disorderly persons offense or disorderly persons offense may apply to enter into the conditional dismissal program, provided the defendant  has not been previously convicted of any offense or crime under any law of the United States, this State or any other state.  A defendant may make an application to the conditional dismissal program after a plea of guilty or a finding of guilt, but prior to the entry of judgment of conviction.

      FINGERPRINTING REQUIREMENT.  To allow sufficient time for verification of the defendant’s criminal history by the prosecutor and as a condition of the application, the defendant will be required to submit to the fingerprint identification procedures as provided in R.S.53:1-15 before making an application to the court.

      CONDITIONAL DISMISSAL PROGRAM ELIGIBILITY. Conditional dismissal will not be available to any person who has previously participated in conditional discharge, conditional dismissal, or PTI.  In addition, conditional dismissal will not be available if the offense for which the person is charged involved: organized criminal or gang activity; a continuing criminal business or enterprise; a breach of the public trust by a public officer or employee; domestic violence; an offense against an elderly, disabled or minor person; an offense involving driving or operating a motor vehicle while under the influence of alcohol, intoxicating liquor, narcotic, hallucinogenic or habit-producing drug; animal cruelty laws; or any disorderly persons offense or petty disorderly persons offense under chapter 35 or 36 of the Criminal Code (drugs and drug paraphernalia). However, a person who is charged with a disorderly persons or petty disorderly persons offense involving drugs or drug paraphernalia may apply for a conditional discharge in accordance with N.J.S.2C:36A-1.

      In addition to these eligibility criteria, the court considering the application must also consider the following factors: the nature and circumstances of the offense; the facts surrounding the commission of the offense; the motivation, age, character and attitude of the defendant; the desire of the complainant or victim to forego prosecution; the needs and interests of the victim and the community; the extent to which the defendant’s offense constitutes part of a continuing pattern of anti-social behavior; whether the offense is of an assaultive or violent nature, either in the act itself or in the possible injurious consequences of such behavior; whether the applicant's participation will adversely affect the prosecution of codefendants; whether diversion of the defendant from prosecution is consistent with the public interest; and any other factors deemed relevant by the court.

      If the court approves a defendant’s participation in the conditional dismissal program over the municipal prosecutor’s objection, that order will, upon the request of the prosecutor, be stayed for a period of 10 days in order to permit the prosecutor to appeal the order to the Superior Court.

      PROGRAM REQUIREMENTS.  After taking into consideration the eligibility criteria, the defendant’s criminal history and the prosecutor’s recommendation, the court may approve the defendant’s participation in the conditional dismissal program and place the defendant under a probation monitoring status for a period of one year. The court may also impose financial obligations and other terms and conditions in accordance with the law.  The law permits the defendant to apply to the court for an extension of the term of conditional dismissal to allow sufficient time to pay financial obligations imposed by the court.  In addition, a judge could extend the term for good cause.

      If a defendant who is participating in conditional dismissal is convicted of any offense or crime under any law of the United States, this State or any other state, or otherwise fails to comply with the terms and conditions imposed by the court, the court can enter a judgment of conviction and impose a fine, penalty, or other assessment in accordance with the defendant’s prior plea of guilty or prior finding of guilt.

      If, at the end of the term, the defendant has not been convicted of any subsequent offense or crime under any law of the United States, this State or any other state, and has complied with any other terms and conditions imposed by the court, the court may terminate the probation monitoring and dismiss the proceedings against the defendant.

      The law provides that a conditional dismissal of a petty disorderly persons or disorderly persons offense granted pursuant to the program will not be deemed a conviction for purposes of disqualifications or disabilities, but shall be reported to the State Bureau of Identification criminal history record information files for purposes of determining future eligibility or exclusion from court diversion programs.  A conditional dismissal granted will not be deemed a conviction for the purposes of determining whether a second or subsequent offense has occurred under any law of this State.

      LIMITATION.  A conditional dismissal can only be granted once with respect to any defendant.

      CONDITIONAL DISMISSAL APPLICATION FEE AND ASSESSMENT.  A person applying for admission to the conditional dismissal program will pay to the court an application fee of $75.  The fee would be deposited in the newly created “Municipal Court Diversion Fund” established under the law. Monies in this new fund will be used to offset the cost of intake and monitoring services related to the conditional dismissal program.  If admitted into the program, the defendant would also be required to pay any restitution, costs, and other mandatory assessments that would have been imposed by law for a conviction of the offense charged.

      A municipal court judge may impose an assessment, based on the nature of the offense and the character of the defendant that shall not exceed the amount of a fine that would have been imposed for conviction of the offense charged.  Such assessment would be distributed in the same manner as a fine for the offense.

      A defendant would be advised of these financial conditions prior to seeking entry into the program.

      The law allows the defendant to apply for a waiver of the fee by reason of poverty.  The court may also permit the defendant to pay the conditional dismissal fee and other assessments in installments or order other alternatives pursuant to section 1 of P.L.2009, c.317 (C.2B:12-23.1).  Under the provisions of that enactment, the court has several options available if it finds that a person does not have the ability to pay a penalty in full or has failed to pay a previously imposed penalty.  The court may reduce, suspend, or modify the installment plan; order that credit be given against the amount owed for each day of confinement if the court finds that the person has served jail time for the default; revoke any unpaid portion of the penalty; order the person to perform community service in lieu of payment of the penalty; or impose any other alternative permitted by law.

      MUNICIPAL COURT DIVERSION FUND.  The law establishes a new dedicated, non-lapsing fund to be known as the "Municipal Court Diversion Fund," which will be administered by the Administrative Office of the Courts.  The fund will be the depository of the $75 application fee for the conditional dismissal program.  Monies in the fund will be used to offset the cost of intake and monitoring services for defendants under the conditional dismissal program.

      CONDITIONAL DISCHARGE. Currently, the conditional discharge statute, N.J.S.2C:36A-1, provides that the $75 fee, which is charged for this program, is used to defray the costs of juror compensation. However, this provision is outdated since these monies are no longer used to defray the costs of juror compensation, but instead are paid to the State Treasurer to for deposit in the General Fund. This law updates this section of law accordingly.

      Under the current provisions of the conditional discharge statute, a person is not eligible for conditional discharge if that person has committed a disorderly persons or petty disorderly persons drug offense under any law of the United States, this State or any other state. The law amends section a. of N.J.S.2C:36A-1 to also provide that a person who has participated in any supervisory treatment program or the conditional dismissal program established under the law will not be eligible for participation in the conditional discharge program.

      SUPERVISORY TREATMENT (PTI).  Similar to the conditional discharge statute, the PTI statute, N.J.S.2C:43-12, provides that the $75 fee charged for the program is used to defray the costs of juror compensation. Since these monies are no longer used to defray the costs of juror compensation, the law updates this section of law accordingly.

      Under the current provisions of N.J.S.2C:43-12, PTI may only occur once and any person who has previously received PTI is not eligible for subsequent PTI. This law expands this provision by providing that a person who has participated in either conditional dismissal or conditional discharge will not be eligible for PTI.

      The law amends the conditional discharge and PTI statutes to provide that the court may allow the payment of the fees and other financial obligations in installments.

      EXPUNGEMENT. The law amends N.J.S.2C:52-6 concerning expungement of arrests not resulting in conviction to allow for expungement of charges dismissed pursuant to conditional discharge or conditional dismissal six months after the entry of the order of dismissal. Currently, this section allows for expungement for a person who has had charges dismissed as a result of participation in a supervisory treatment program.

State v. William O’Driscoll (A-7-12; 070438)

State v. William O’Driscoll (A-7-12; 070438)
The police officer’s errors in the reading of the
standard statement informing defendant of the
consequences of refusing to provide a breath sample
were not material in light of the statutory purpose to
inform motorists and impel compliance. The officer’s
misstatements could not have reasonably affected
defendant’s choice to refuse to provide a breath
sample, and do not require reversal of defendant’s
conviction for refusal. 9-18-13

State v. Robert Handy (A-68-11; 069022)

State v. Robert Handy (A-68-11; 069022) 

The bifurcated trial procedure created in State v. Kahn, 175 N.J. Super. 72 (App. Div. 1980), is disapproved and that decision is overruled. In the future, trials that involve both a substantive defense and an insanity defense must be unitary proceedings. The matter is remanded to the trial court to afford defendant the opportunity to continue in a second phase of his trial which he may present his self-defense claim. 9-9-13 

STATE OF NEW JERSEY VS. DANIEL BLAZAS A-0705-10T3

STATE OF NEW JERSEY VS. DANIEL BLAZAS 

A-0705-10T3 

The "meaningful opportunity to present a complete defense" guaranteed by the Federal and New Jersey Constitutions is denied when the prosecution substantially interferes with a defendant's ability to secure witness testimony. In this case, the government conduct alleged did not result in the denial of witness testimony but, rather, in the denial of access to the witness for interview by the defense. Because such allegations, if true, would be proof of substantial interference with defendant's constitutionally guaranteed right of access to witnesses, we hold that the trial judge erred in failing to conduct an evidentiary hearing. In addition, we conclude that a reversal of defendant's convictions is required because the trial judge granted his motion to proceed pro se without adequately advising him of the consequences of his decision. 08-26-13 

WAIVER OF FIRST APPEARANCE FOR INDICTABLE OFFENSES – RULE 3:4-2(e) PROTOCOL AND FORM

Richard J. Hughes Justice Complex • PO Box 037 • Trenton, New Jersey 08625-0037 

Administrative Office of the Courts 

GLENN A. GRANT, J.A.D. 

Acting Administrative Director of the Courts 

www.njcourts.com • Phone: 609-984-0275 • Fax: 609-984-6968 

[Questions and/or comments may be directed to 609-292-4638.] 

TO: ASSIGNMENT JUDGES 

Directive # 01-13 

FROM: GLENN A. GRANT, J.A.D. 

DATE: MARCH 18, 2013 

SUBJ: WAIVER OF FIRST APPEARANCE FOR INDICTABLE OFFENSES – RULE 3:4-2(e) PROTOCOL AND FORM 

This Directive promulgates a standard form to be used and a protocol to be followed when a defendant who is facing indictable charge(s) elects to waive his or her first appearance. The form and protocol, which apply to first appearances in Municipal Court and in Superior Court, have been endorsed by the Conference of Criminal Presiding Judges, the Conference of Municipal Court Presiding Judges, the Conference of Criminal Division Managers, and the Conference of Municipal Division Managers. 

A. Waiver of First Appearance for Indictable Offenses – Rule 3:4-2 

Rule 3:4-2 provides that following the filing of a complaint, the defendant shall be brought before a judge for a first appearance without unnecessary delay, If the defendant remains in custody, the first appearance shall occur within 72 hours after arrest, excluding holidays, and shall be before a judge with authority to set bail for the offenses charged. Paragraph (e) of Rule 3:4-2 provides that a defendant who is represented by an attorney and is not incarcerated may waive the first appearance by filing a written statement signed by the attorney, unless otherwise ordered by the court. More specifically, Rule 3:4-2(e) provides that to waive the first appearance for indictable offenses, the attorney must certify that: 

1. the defendant has received a copy of the complaint and has read it or the attorney has read it and explained it to the defendant; 

2. the defendant understands the substance of the charge; 

3. the defendant has been informed of the right to remain silent and that any statement may be used against the defendant; Directive # 01-13 - Waiver of First Appearance – R. 3:4-2(e) March 18, 2013 - Page 2 

Richard J. Hughes Justice Complex • PO Box 037 • Trenton, New Jersey 08625-0037 

4. the defendant has been informed that there is a pretrial intervention program and where and how an application to that program may be made; and 

5. the defendant has been informed of the right to have a hearing as to probable cause, the right to indictment by the grand jury and trial by jury, and, if applicable, that the offense charged may be tried by the court upon waiver of indictment and trial by jury, if in writing and signed by the defendant. 

B. Procedures for a Defendant to File a Waiver of the First Appearance 

1. A defendant who is not incarcerated and is represented by counsel may waive the first appearance by completing the Waiver of First Appearance for Indictable Offenses Form (attached). The rule requires the defendant’s attorney to certify that the defendant has been advised of the information set forth in Rule 3:4-2(e). 

2. The Waiver of First Appearance for Indictable Offenses Form must be filed by the attorney with the Superior Court or Municipal Court where the first appearance is scheduled, either at or before the time fixed for the first appearance. The preference is for such filing to be done electronically. 

3. The attorney filing the Waiver of First Appearance for Indictable Offenses Form must provide a copy to the Criminal Division Manager’s office in the vicinage where the complaint has been filed and to the prosecuting attorney (i.e., the County Prosecutor or the Attorney General). The preference is for such copies to be provided electronically. 

This Waiver of First Appearance form can be modified for use in the rare instance that a first appearance for a non-indictable offense is held in Superior Court pursuant to Rule 3:4-2(c). 

Any questions or comments regarding this Directive may be directed to Joseph J. Barraco, Assistant Director for Criminal Practice at 609-292-4638 or Debra Jenkins, Assistant Director for Municipal Court Services Division at (609) 984-8241. 

/mp 

Attachment

cc: Chief Justice Stuart Rabner 

Attorney General Jeffrey S. Chiesa 

Public Defender Joseph E. Krakora 

Criminal Division Judges 

Municipal Court Judges 

Elie Honig, Director, DCJ 

County Prosecutors 

Steven D. Bonville, Chief of Staff 

AOC Directors and Assistant Directors 

Trial Court Administrators 

Criminal Division Managers 

Municipal Division Managers 

Assistant Criminal Division Managers 

Municipal Court Directors and Administrators 

Gurpreet M. Singh, Special Assistant 

Susan Callaghan, Chief, Criminal Practice 

Carol A. Welsch, Chief, Mun. Ct. Services 

Steven Somogyi, Municipal Ct. Services 

Melaney S. Payne, Criminal Practice 

ATTACHMENT 

Waiver of First Appearance for Indictable Offenses Form Original: Court Copies: County Prosecutor/Attorney General, Criminal Division Manager Form Promulgated by Directive #01-13 (03/18/2013), CN: 11688 

Waiver of First Appearance for Indictable Offenses 

For Attorney Use Only 

In accordance with R. 3:4-2(e), I am requesting a waiver of the first appearance 

scheduled for my client	on
(client’s name)	(date of first appearance)
at	.
(location)