Kenneth Vercammen 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, DWI, traffic and other litigation matters. He is Co Chair of the ABA Criminal Law Committee, GP and was a speaker at the ABA Annual Meeting. To schedule a confidential consultation, call us or New clients email us evenings and weekends go to www.njlaws.com/ContactKenV.htm

Kenneth Vercammen & Associates, P.C,

2053 Woodbridge Avenue,

Edison, NJ 08817,

(732) 572-0500,

www.njlaws.com

Wednesday, February 23, 2011

Defending College Students for Criminal Arrest



Defending College Students for Criminal Arrest

By Kenneth A. Vercammen, Past Chair NJ State Bar Municipal Court and DWI Section

Our office often represents college students charged with criminal and disorderly persons offenses. We provide representation throughout New Jersey. Criminal charges can cost you. If convicted of possession of drugs or a crime, you can face jail, high fines, Probation over 18 months and other penalties. Dont give up! Our Law Office can provide experienced attorney representation for marijuana, underage drinking and other criminal matters. Our website kennethvercammen.com provides information on criminal offenses we can be retained to represent people.

Consequences of a Criminal Guilty Plea in Superior Court

1 If you plead guilty you will have a criminal record

2. Before the judge can accept your guilty plea, you will have to stand up in open court and tell the judge what you did that makes you guilty of the particular offense in front of all persons in the courtroom.

3. You can go to jail, pay thousands of dollars in fines, and may be barred from future employment

3. You may not be able to get a job as a teacher, public employee, banking industry, real estate or other state regulated field.

4. On employment applications, you will have to answer yes that you were convicted of a crime.

5. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction. 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.

 

6. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation.

7 In all drug cases, the statute requires mandatory driver’s license suspension. New Jersey does not have a special license to go to work or school.

8. 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.

 

9. You must pay restitution if the court finds there is a victim who has suffered a loss.

 

10. 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.

 

11. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.

12. You must wait 5-10 years to expunge a first offense. 2C:52-3

 

13. You lose the presumption against incarceration in future cases. 2C:44-1

 

14. You may lose your right to vote.

The defense of a person charged with possession of marijuana or other 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 involvement with marijuana, hashish or other illegal cannabis derivatives. The Superior Court handles possession of larger amounts of marijuana, or other illegal drugs and possession with intent to distribute drugs

The Municipal Court has jurisdiction to hear the following drug-related offenses:

NJSA 2C:5-10(a)(4), possession of 50g or less of marijuana or 5g or less of hashish; NJSA 2C:35-10(b), using or being under the influence of CDS; NJSA 2C:35-10(c), failure to deliver cocaine, hashish or other CDS to police [County Prosecutors often downgrade possession of small amounts of cocaine to this offense;] NJSA 2C:36-2, possession of drug paraphernalia. All other drug offenses are heard in the Superior Court.

 

If convicted, the court must impose a minimum $500.00 Drug Enforcement Reduction penalty and a $50.00 lab fee for each CDS charge. Moreover, the court must suspend the defendants drivers license for between six months and two years. In addition, probation for up to two years, drug counseling, periodic urine testing, alcohol and/or psychiatric counseling and community service may be imposed. Fines and jail vary depending on the amount of marijuana, hashish or other illegal drugs and whether the case is heard in Superior Court or Municipal Court. Jail time and fines is explained in greater details in other articles on kennethvercammen.com.

The retainer fee will be discussed at the initial interview. Defense attorneys require the full retainer to be paid prior to my entering an appearance. Depending on the case, County and prior offenses, fees range between $1,000-$7,000.

My standard procedure, once we are retained, is to immediately send a discovery letter/letter of representation to both the Prosecutor and the Court Clerk. I try to stay in close contact with the client. I also can provide the client with a brochure setting forth phone numbers and addresses for substance abuse treatment programs with a recommendation they seek help for any problem. Proof of attendance of such a program is of benefit at sentencing or an application for PTI or conditional discharge.

A timely Motion to Suppress Evidence can be made pursuant to Rule 3:5-7. Do it immediately; do not wait to receive discovery.

 

Conditional Discharge or Pre-trial Intervention/ PTI for 1st time offenders

If the Suppression Motion is unsuccessful or not a viable option, counsel should discuss the possibility of filing an application for Pre-trial Intervention.

For small amounts of marijuana and paraphernalia, heard in Municipal Court, N.J.S.A. 2C: 36A-I provides that a person not previously convicted of a drug offense either under Title 2C or Title 24 and who has not previously been granted supervisory treatment under 24:21-27, 2C:43-12 or 2C: 36A-1 may apply for a Conditional Discharge. The court upon notice to the prosecutor and subject to 2C: 36A-1(c) may on the motion of the defendant or the court, suspend further proceedings and place the defendant on supervisory treatment (i.e., probation, supervised or unsupervised attendance at Narcotics Anonymous, etc.). Since the granting of a Conditional Discharge is optional with the court, defense counsel should be prepared to prove through letters, documents, or even witnesses, that the defendants continued presence in the community or in a civil treatment program will not pose a danger to the community. Defense counsel should be prepared to convince the court that the terms and conditions of supervisory treatment will be adequate to protect the public and will benefit the defendant by serving to correct any dependence on or use of controlled substances. For applicable caselaw on Conditional Discharges, see State v Sanders N.J. Super 515 (App. Div. 1979), State v Banks 157 N.J. Super. 442 (Law Div. 1978), State v Grochulski 133 NJ Super 586 (Law Div. 1975), State v Teitelbaum. 160 NJ Super 450 (Law Div. 1978), State v Bush L34 NJ Super 346 (Cty Ct 1975), State v DiLuzio 130 NJ Super 220 (Law Div. 1974). The defendant must be required to pay a $45.00 application fee, plus the mandatory $500.00 DEDR penalty. The court further has the option to suspend a defendants drivers license for between six months and two years.

The Conditional Discharge period is also between one year and two years. If the defendant is convicted of a drug offense during the CD period or violates the conditions set by the court, the prosecution resumes. The defendant may even apply for a conditional discharge after he/she is found guilty, but before sentence is imposed. If the CD is granted at this point in the proceeding, the 6 to 24 month license suspension is mandatory.

Pre-trial Intervention may be available for first time offenders charged with certain non- violent offenses heard in Superior Court. More details on PTI is available on website kennethvercammen.com.

 

TRIAL PREPARATION

The prosecutor is responsible for providing full discovery. Rules 3:13-3, 7:7-7, State v Polasky, N.J. Super. 549 (Law Div. 1986); State v Tull, 234 N.J. Super. 486 (Law Div. 1989); State v Ford, 240 N.J. Super. 44 (App. Div. 1990).

 

THE TRIAL

In drug cases, the burden of primary possession/constructive possession remains on the State. Plea bargaining is not permitted in Municipal Court drug cases (while it is available in such varied charges as murder, careless driving, or the burning of old tires). Plea bargaining is permitted in Superior Court indictable cases.

Defense counsel can subpoena its necessary witnesses and prepare for trial The State must prove knowledge or purpose on the part of the defendant. Knowledge means that the defendant was aware of the existence of the object and was aware of its character. Knowledge of the character of the substance may be inferred from the circumstances. 33 N.J. Practice Criminal Law & Procedure (Miller) Sec. 378 p. 563 (2nd Ed 1990).

If actual possession cannot be demonstrated, defendants constructive possession may sometimes be shown by proof that the narcotics were subject to dominion and control. If two or more persons share actual or constructive possession, then their possession is joint.

Mere presence in a premises with other persons where CDS is found is not sufficient, in itself, to justify an inference that a particular defendant was in sole or joint possession of the substance. State v McMenamin 133 N.J. Super. 521,S24 (App. Div. 1975).

In State v. Shipp, 216 N.J. Super. 662,666 (App. Div. 1987), it was held there was insufficient evidence that the defendant, a passenger in the front seat, had constructive possession of CDS contained in envelopes secreted in a vinyl bag resting on the back seat next to another passenger in the car.

In addition to establishing the item seized is CDS through either a lab report or the State Police chemist, the State must establish the chain of custody. The prosecutors witness will call witnesses to prove the location of the seized drugs from the moment of initial seizure to the time of testing of the drugs. If the state will be attempting to introduce a confession or other incriminating statements, defense counsel may request on evidence rule 8 hearing to determine if the requirements of Miranda v. Arizona 384 US. 436 (1966) have been violated. If the defendant elects to take the stand, defense counsel must be certain that he testifies with complete candor and does not try to embellish his protestations of innocence.

The following ideas are sometimes used by defense attorneys to provide defend criminal charges.

1. No discovery Send a discovery letter/letter of representation to both the District Attorney/Municipal Prosecutor, Police Records Bureau of the law enforcement agency which issued the complaint and the Court Clerk. Failure of the state to provide discovery may be grounds to dismiss the charges.

2. Suppression A timely Motion to Suppress Evidence must be made.

3. Subpoena witnesses defense Counsel should subpoena witnesses; sometimes even serving a subpoena duces tecum on the arresting officer to compel him to bring to court the object allegedly observed in plain view. Credibility will be tested when the object that was claimed to be in plain view inside a car is actually only one-half inch long. Cross-examination is pivotal in determining credibility. Failure to subpoena a witness may be malpractice if your necessary witness is not present.

4 No lab tests The State must prove the substance seized was a controlled dangerous substance (CDS). To prove the substance is CDS, either the lab technician who examined the substance must be called testify, or the State will have to admit the lab certificate. If the State intends to proffer the lab certificate at the trial, a notice of an intent to proffer that certificate, and all reports relating to the analysis of the CDS, should be served by the state on defense counsel. This includes an actual copy of the lab certificate. Defense counsel must notify the prosecutor in writing of defendants objection to the admission into evidence of the certificate, plus set forth the grounds for objection. Failure by defense counsel to timely object shall constitute a waiver of any objection to the certificate, thus, the certificate will be submitted into evidence. If the state cant introduce lab results, the state cant use.

5. Chain of Custody The State must then establish a chain of custody. The prosecutors witness will call additional witnesses to prove the locations of the seized drugs from the moment of initial seizure to the time of the testing of the illegal drug. Defense counsel can contest the chain of custody.

6. Confession excluded If the state will be attempting to introduce a confession or other incriminating statements, defense counsel may request an Evidence Rule Hearing to determine if the requirements of Miranda v. Arizona 384 US. 436 (1966) have been violated.

7. Constructive possession not proven The burden of primary possession/constructive possession remains on the State. The State must prove it was defendants conscious intention to obtain or possess the item while being aware it was drugs. Defendants constructive possession may sometimes be shown by proof that the narcotics were subject to dominion and control. If two or more persons share actual or constructive possession, then their possession is joint. However, mere presence on premises where CDS is found is not sufficient, in itself, to justify an inference that a particular defendant was in sole or joint possession of the substance.

 

Conclusion

It is well established that the prosecution of a defendant for possession of marijuana, hashish or other illegal cannabis derivatives is a criminal proceeding. In such a proceeding the burden of proof is upon the state to establish all elements of the offense beyond a reasonable doubt. Unfortunately, plea bargaining is not permitted in Municipal Court drug cases (while it is available in such varied charges as murder, careless driving, or the burning of old tires). Defense counsel must subpoena its necessary witnesses and prepare for trial. Never attempt to represent yourself if you are facing serious charges.

Marijuana, or other drug offenses carry substantial penalties which will effect your client for the rest of his life. The space limits of this article do not allow detailed explanation of the extensive caselaw on controlled dangerous substances. Drug law and other defenses are explained in greater details in other articles on kennethvercammen.com.

Call Kenneth Vercammen & Associates PC for confidential representation 732-572-0500

 

About the Author

Kenneth A. Vercammen is a trial attorney in Edison, Middlesex County, New Jersey. He often lectures for the New Jersey State Bar Association, New Jersey Institute for Continuing Legal Education and Middlesex County College on personal injury, criminal / municipal court law, and drunk driving. He has published 125 articles in national and New Jersey publications on municipal court and litigation topics. He has served as a Special Acting Prosecutor in seven different cities and towns in New Jersey and also successfully defended hundreds of individuals facing Municipal Court and Criminal Court charges.

In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey several times each week on many personal injury matters, Municipal Court trials, arbitration hearings, and contested administrative law hearings.

Since 1985, his primary concentration has been on litigation matters. Mr. Vercammen gained other legal experiences as the Confidential Law Clerk to the Court of Appeals of Maryland (Supreme Court), with the Delaware County, PA District Attorney Office handling Probable Cause Hearings, Middlesex County Probation Dept as a Probation Officer, and an Executive Assistant to Scranton District Magistrate, Thomas Hart, in Scranton, PA.



Defendant Should Not be Deprived of the Full Right to Cross-Examine the Police Officers and Witnesses at Trial

Defendant Should Not be Deprived of the Full Right to Cross-Examine the Police Officers and Witnesses at Trial

The NJ Supreme Court in State v Castagna 187 NJ 293 (2006) wrote:

“The Confrontation Clause of the Sixth Amendment provides that “in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI. The Confrontation Clause is applicable to the states through the Fourteenth Amendment. Painter v. Texas, 380 U.S. 400, 406, 85 S. Ct. 1065, 1069, 13 L. Ed.2d 923, 927-28 (1965). Our state constitution provides the same guarantee. N.J. Const. art. I, § 10.

“The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.” Maryland v. Craig, 497 U.S. 836, 845, 110 S. Ct. 3157, 3163, 111 L. Ed. 2d 666, 678 (1990). In Craig, the United States Supreme Court outlined four key elements of a defendant’s right of confrontation: physical presence; the oath; cross examination; and observation of demeanor by the trier of fact. Id. at 846, 110 S. Ct. at 3163, 111 L. Ed. 2d at 679; see also, State v. Smith,158 N.J. 376, 385 (1999). In the present case we are concerned with cross-examination, which has been described as “the ‘greatest legal engine ever invented for the discovery of truth.’” California v. Green, 399 U.S. 149, 158, 90 S. Ct. 1930, 1935, 26 L. Ed.2d 489, 497 (1970) (citation omitted); see also Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 1110, 39 L. Ed.2d 347, 353 (1973) (explaining that “cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested”); State v. Garron, 177 N.J. 147, 169 (2003) (noting right to confrontation “among the minimum essentials of a fair trial”) (quoting Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 1045, 35 L. Ed.2d 297, 308 (1973)). “

       In State v Castagno 177 NJ 147 (2003) the Supreme Court reversed a conviction partly because of failure to fully permit cross-examination in a rape shield case.  The Supreme Court wrote:

“The Federal and New Jersey Constitutions guarantee criminal defendants “a meaningful opportunity to present a complete defense.” Crane v. Kentucky, 476 U.S. 683, 690, 106 S. Ct. 2142, 2146, 90 L. Ed.2d 636, 645 (1986) (internal quotation marks omitted); Budis, supra, 125 N.J. at 531 (same). “That opportunity would be an empty one if the State were permitted to exclude competent, reliable evidence bearing on . . . credibility . . . when such evidence is central to the defendant’s claim of innocence.” Crane, supra, 476 U.S. at 690, 106 S. Ct. at 2147, 90 L. Ed. 2d at 645.

In State v. Garron, 177 N.J. 147, 169 (2003) looking at the rape shield law, the court wrote: “
Stated a different way, if evidence is relevant and necessary to a fair determination of the issues, the admission of the evidence is constitutionally compelled. See, e.g., Olden v. Kentucky, 488 U.S. 227, 229-33, 109 S. Ct. 480, 482-84, 102 L. Ed.2d 513, 518-20 (1988) (holding that right of confrontation was violated by excluding cross-examination concerning rape victim’s cohabitation with defendant’s half-brother that was “crucial” to consent defense to demonstrate victim’s motive to fabricate); Rock v. Arkansas, 483 U.S. 44, 52, 62, 107 S. Ct. 2704, 2709, 2714, 97 L. Ed.2d 37, 46, 52-53 (1987) (holding that right of compulsory process was violated by excluding manslaughter defendant’s hypnotically-refreshed testimony concerning circumstances of shooting husband that was “material and favorable” to defense that gun accidentally discharged); Crane, supra, 476 U.S. at 690-91, 106 S. Ct. at 2146-47, 90 L. Ed 2d at 645 (holding that fair trial required admission of testimony that was “central” to defense concerning reliability of sixteen-year-old’s confession to murder); Chambers, supra, 410 U.S. at 294-303, 93 S. Ct. at 1045-49, 35 L. Ed. 2d at 308-13 (holding that rights of confrontation and compulsory process were violated by excluding cross-examination and direct testimony concerning third party’s oral and written confessions to murder that was “critical” to defense of third-party guilt); Washington v. Texas, 388 U.S. 14, 16, 23, 87 S. Ct. 1920, 1921-22, 1925, 18 L. Ed.2d 1019, 1021, 1025 (1967) (holding that right of compulsory process was violated by excluding co-defendant’s testimony concerning circumstances of shooting that was “vital” to defense that co-defendant fired fatal shot).”

A criminal defendant has the right “to be confronted with the witnesses against him” and “to have compulsory process for obtaining witnesses in his favor.” U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10. The rights to confront, cross-examine, and produce witnesses have been aptly characterized as “opposite sides of the same coin,” because each confers the same fundamental right to elicit testimony favorable to the defense before the trier of fact. David Guy Hanson, Note, Judicial Discretion in Sexual Assault Cases after State v. Pulizzano: The Wisconsin Supreme Court Giveth, Can the Wisconsin Legislature Taketh Away?, 1 992 Wis. L. Rev. 785, 789 (citing Peter Westen, Confrontation and Compulsory Process: A Unified Theory of Evidence for Criminal Cases, 91 Harv. L. Rev. 567, 601-06 (1978)). See also Janet C. Hoeffel, The Sixth Amendment’s Lost Clause: Unearthing Compulsory Process, 2 002 Wis. L. Rev. 1275, 1307 (construing rights to confrontation and compulsory process as “sister clauses” which together “make the presentation of a defense at trial complete”). Each has long been recognized as essential to the due process right to a “fair opportunity to defend against the State’s accusations,” and thus “among the minimum essentials of a fair trial.” Chambers v. Mississippi,410 U.S. 284, 294, 93 S. Ct. 1038, 1045, 35 L. Ed.2d 297, 308 (1973).

        In the seminal case of Davis v. Alaska, 415 U.S. 30894 S. Ct. 1105,39 L. Ed.2d 347 (1974), the United States Supreme Court determined that a state’s procedural rule and statute protecting the privacy of a juvenile’s delinquency record had to give way to the superior claim of the Federal Confrontation Clause. In Davis, the State’s key witness was serving a probationary term for a delinquency adjudication at the time he cooperated with the prosecution and gave testimony implicating the defendant in a burglary. The defense sought to cross-examine the witness on the basis of bias, arguing that because of the witness’s vulnerable status as a probationer, he had reason to curry favor with the State. Relying on the state’s provisions protecting the confidentiality of a juvenile adjudication, the trial court barred the defense from eliciting on cross-examination the witness’s probationary status.

While recognizing the privacy interests at stake, the US Supreme Court in Davis concluded that “[t]he State’s policy interest in protecting the confidentiality of a juvenile offender’s record cannot require yielding of so vital a constitutional right as the effective cross-examination for bias of an adverse witness.” Id. at 320, 94 S. Ct. at 1112, 39 L. Ed. 2d at 356. In reversing the conviction, the Court found that any embarrassment or blemish to the reputation of the juvenile “must fall before the right of [the defendant] to seek out the truth in the process of defending himself.” Ibid.

Friday, February 18, 2011

A Judges Instructions to Jurors in a Civil Case

A person who is injured as a result of the negligence of another person is what we in the legal profession refer to as a personal injury claimant. In other words, they have been injured as a result of an accident, and now wish to prosecute a claim against a negligent property owner and its insurance company. Kenneth Vercammen & Associates Law Office helps people injured due to the negligence of others. We provide representation throughout New Jersey. The insurance companies will not help. Dont give up! Our Law Office can provide experienced attorney representation if you are injured. If the case cannot settle, and goes to the judge and jury, portion of the Model Jury charge set forth what a judge should tell the jurors, prior to making a decision.

Outline of what the judge tells the jury

1. Explanation of Nature of Case

2. Duty of Citizens to Serve as Jurors

3. Counsels Right to Peremptory Challenges

4. Introduction of Parties, Counsel and Potential Witnesses

5. Identification of Potential Witnesses

6. Particularized Questions

------------------------------------------------------------------INSTRUCTIO NS TO JURORS

1. Explanation of Nature of Case

The judge will address the members of the jury pool and inform them that a number of them (usually between six and twelve and two alternates) will be selected to be jurors for the trial of a civil case. The judge will explain the nature of the case. For example: It arises out of an automobile accident that occurred on Route #1, here in Middlesex County, on ( date ). The plaintiff brings this suit contending that the accident was caused by the negligence or fault of the driver of the other vehicle. She sues to recover money damages for the injuries she says she sustained in the accident. Her husband is also a plaintiff and he sues for money damages to compensate him for his losses. The defendant in the case denies that he caused this accident. The jury will be asked to decide fault for the accident and, if the plaintiffs are entitled to an award of damages. The jury will also be asked to decide on the appropriate amount.

2. Duty of Citizens to Serve As Jurors

Serving as a juror is inconvenient, but jury service is an important duty of citizenship. Having jurors available to decide the facts in lawsuits is fundamental to our entire system of justice. The courts cannot function without members of the public offering their time to serve as jurors.

3. Counsels Right To Peremptory Challenges

After the judge has asked you a number of questions which relate to your ability to hear and decide this case with an open mind and with complete impartiality. The attorneys who represent the parties in the lawsuit can exercise the right to excuse one or more of the jurors without giving any explanation or reason. If they are excused in that manner, please do not take it personally. No offense is intended. The law traditionally gives each attorney the right to have a limited number of jurors excused for no expressed reason.

4. Introduction Of Parties, Counsel and Potential Witnesses

The judge will introduce the parties to the lawsuit as follows: [The judge will give the full name and municipality of residence of each party. If the parties are present in the courtroom, the Court may, in its discretion, ask the party to stand so that the jury can identify him or her.] The attorneys who represent the parties are: [The judge will give the full name of each attorney and the law firm for which he or she appears. The Court should consider asking each attorney to rise upon introduction by the Court. The Court might consider the option of asking each attorney to introduce himself or herself and the party represented in lieu of the Court performing the introduction.] Do any of you jurors know any of the parties to this lawsuit or do you know anyone you believe to be related to or acquainted with any party to the lawsuit? [If an affirmative answer, ask the juror to explain.] Do any of you jurors know any attorney involved in this lawsuit or any member of the firm for which the attorney appears? Have you or anyone close to you ever been represented by any of the law firms whose name the judge has just given you? [If an affirmative answer, ask the juror to explain.]

5. Identification Of Potential Witnesses

The court will now identify for jurors all persons who are potential witnesses in this trial. [Give name and address or some identification of each potential witness.] Because knowing one of the potential witnesses might influence your independent and impartial judgment of the facts of this case, the judge needs to know if you recognize any of the names the judge just read. Do you know any of the potential witnesses in this trial? [If an affirmative answer, ask the juror to explain.]

6. Particularized Questions

[At this point, the Court should question the jurors about all subjects that might influence their impartiality. The nature of those questions will depend upon the nature and the specific facts of the case to be tried.] [In the event the Court anticipates that some jurors may be asked to answer certain questions at side-bar in the presence of only the Court and the attorneys, the following instruction should be considered.] The judge may occasionally suggest a conference over here at the side of the Bench because there is a possibility that your comment could influence the other jurors if they heard it. You also might feel more comfortable responding to the questions in some degree of privacy rather than in front of everyone in the courtroom. These conferences will be on the record the same as every other word that is spoken in this courtroom.

Model Civil Jury Charges

1.11 PRELIMINARY CHARGE [To be given after the jury is sworn in but before the openings.] Outline

A. Role of Jury, Court and Attorneys

B. Prohibition Against Discussing the Case

C. Jurors Not to Visit the Accident Scene or Do Investigations

D. Note-Taking Prohibited

E. Outline of Order of Events

F. Settling Defendants

A. Role of Jury, Court and Attorneys

The judge will say, "As the jury in this case, you will be the judges of the facts and you will be the only judges of the facts. You will have to decide what happened. The judge plays no part in judging the facts. That is the jurors responsibility. The judge role is to be the judge of the law, that is to say, the judge makes whatever legal decisions have to be made during the course of the trial, and the judge will explain to you the legal principles that must guide you in your decisions on the facts. You are to judge the facts in this case based upon the evidence presented to you and based only on the evidence. This evidence will consist of the testimony of witnesses, the exhibits marked into evidence, and any material that we read to you. As the trier of fact, it will be your job to judge the believability of the witnesses. Size up the witness. Is the witness telling the truth? Does the witness know what he/she is talking about? How good is the witnesss recollection? Is the witness accurate and correct in what he/she is saying? You may also consider the demeanor of the witness, that is, how is the witness behaving and responding to the questions asked. You may believe part of the witnesss testimony and not believe other parts of it." During the trial, the judge will be required to rule on the admission or rejection of evidence. You are to give no consideration to any evidence that the judge rules to be inadmissible and you are not to speculate or guess about what that evidence might have been or what it might have meant. Do not infer from any rulings the judge makes in this case or anything the judge says what his/her feelings might be about the outcome of this case. Even if you knew what the judges feelings were, you should disregard them, because it is the your decisions on the facts that control, not the judges. At the close of the entire case, the judge will explain to you the law, which applies to this case. You must accept the law as the judge explains it to you and apply it to the facts as you find them to be based on the evidence. During the course of the trial, you will hear from the attorneys on numerous occasions. Always bear in mind that the attorneys are not witnesses and what they say is not evidence in the case, whether they are arguing, objecting or asking questions. The attorneys are here as advocates and spokespersons for their clients positions.

B. Prohibition Against Discussing the Case

This case is very important to all the parties involved. They are entitled to the full attention of the jury throughout the trial and to fair and impartial consideration of the case by the jury. It is important, therefore, that you keep an open mind about this case until the very end when you are in the jury room deliberating. You are not to make any judgments or come to any conclusions about this case, until you have heard the whole story and that means until all the evidence is presented and the judge has explained the law to you. You are not to have any contact or discussions with any of the parties, their attorneys, or any of the witnesses. You are not to discuss the case with anyone or permit anyone to discuss the case with you, whether here in the courthouse or anywhere outside the courthouse. If anyone attempts to discuss this case with you or attempts to influence your judgment about the case, you are to report that to the judge immediately. If you are to keep an open mind, you must not even discuss this case among yourselves until it is over and you are deliberating. That means, when you convene each morning, as you are leaving at the end of each trial day and during your recesses and breaks you are not to talk about this case among yourselves. Do not discuss this case with anyone that is not on the jury. This includes your family and friends. When you go home, you may tell your family you have been selected as a juror in a civil case and the expected length of the trial. You should not tell them anything more about the case. Even though a further explanation by you may begin innocently, once you finish talking the other person is not going to just stand there and say nothing. That person will say something and that response may influence your thinking. Your thinking should be influenced only by what you learn in the courtroom.

C. Jurors Not to Visit Accident Scene or Do Investigations

While this case is pending, you must not visit the (accident) scene. That area may have changed from the time of the (accident/incident) until now. In addition, do not do any research or make any investigations about this case on your own. That is not your job. You are here to decide this case based solely on the evidence presented in this courtroom.

D. Note-Taking (When note taking is prohibited)

You will not be permitted to take notes during this trial. The concern is that note-taking would be distracting, that notes would often be incomplete and that undue weight may be given to the notes. The court wants you to rely upon your combined recollection of all the evidence.

E. Outline of Order of Events

The trial will start with the attorneys opening statements. In their opening statements the attorneys will explain to you the position of their clients in this litigation. They will tell you what they think this case is about, and what they believe the evidence will show. The opening statements are designed to highlight for you the disagreements and factual differences between the parties in order to help you judge the significance of the evidence when it is presented. Once the attorneys have made their opening statements then each party is given an opportunity to present its evidence. First, the plaintiff presents its evidence. Then the defense will present its evidence. Each witness will undergo direct examination which means that the attorney calling the witness will ask that person questions. After that the other attorneys are given an opportunity to question the witness, which is referred to as cross-examination. Once all the evidence has been presented, the attorneys will make their closing arguments. They will give you their analysis of what the evidence means and will attempt to highlight the significant evidence that is helpful to their clients positions. Once the closing arguments are completed, the judge will instruct you on the legal principles to be followed when deciding this case.

F. Settling Defendants

When this case started, the plaintiff claimed that there was a cause of the accident. Before the trial started, settled with plaintiff and for that reason will no longer be involved in this trial. The effect of that settlement on the parties still here is of no concern to you at the present time and you should not speculate about that. The judge will explain the effect that settlement will have on your deliberations at the end of the case.

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GENERAL PROVISIONS AND OUTLINE FOR STANDARD CHARGE (11/98)

Outline

Introduction

A. Purpose of Charge

B. Role of the Court

C. Role of the Attorneys

D. Role of the Jury

E. The Evidence

F. Contention of the Parties

G. Burden of Proof

H. Preponderance of the Evidence

I. Direct and Circumstantial Evidence or Inferences

J. Credibility

K. False in One - False in All

L. Damages

M. No Prejudice, Passion, Bias or Sympathy

N. Deliberations

O. Alternates

P. Verdict

Q. Jury Verdict Sheet

R. Communications with Court

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A. Purpose of Charge

The judge is now going to tell you about the principles of law governing this case. You are required to accept the judges instructions as the law. (You should consider these instructions as a whole, and do not pick out any particular instruction and place undue emphasis upon it).

B. Role of the Court

The judge sits here as the judge of the law. As part of this responsibility, the judge will make various rulings and statements throughout this trial. Do not view these rulings and statements as clues about how the judge thinks this case should be decided. They are not. They are based solely on the judges understanding of the law and rules of evidence, and they do not reflect any opinions of the judge about the merits of this case. Even if they did, you should disregard them, because it is the your role to decide this case, not the judges.

C. Role of the Attorneys

The lawyers are here as advocates for their clients. In their opening statements and in their summations, they have given you their views of the evidence and their arguments in favor of their clients position. While you may consider their comments, nothing that the attorneys say is evidence and their comments are not binding upon you. (In addition, you must not decide this case based on the performance of the attorneys.)

D. Role of the Jury

You sit here as judges of the facts. You alone have the responsibility of deciding the factual issues in this case. It is the your recollection and evaluation of the evidence that controls. If the attorneys or the judge say anything about the facts in this case that disagrees with your recollection of the evidence, it is your recollection that you should rely on. Your decision in this case must be based solely on the evidence presented and the judges instructions on the law.

E. The Evidence

The evidence in this case consists of [refer to appropriate items]: 1. the testimony that you heard from the witness (including any videotaped testimony); 2. the exhibits that have been marked into evidence; 3. the deposition testimony and answers to interrogatories that were read into the record; 4. the stipulations and admissions that were placed on the record. As you recall, the stipulation and admissions are facts that the parties agree are true. Therefore, you can accept all admissions and stipulations as true in your deliberations.

(Use when applicable) Any testimony that the judge has stricken from the record is not evidence and should not be considered by you in your deliberations. This means that even though you may remember the testimony, you are not to use it in your discussions or deliberations.

F. Contention of the Parties

[Judge explains the contentions of the parties.]

G. Burden of Proof

The burden of proof is on the plaintiff/each party to establish his/her/their claim by a preponderance of the evidence. In other words, if a person makes an allegation, then that person must prove the allegation. In this action, the plaintiff has the burden of establishing by a preponderance of the evidence all of the facts necessary to prove the following issues:

[Judge explains issues raised by defendant.]

H. Preponderance of the Evidence

The term "preponderance of the evidence" means the amount of evidence that causes you to conclude that the allegation is probably true. To prove an allegation by the preponderance of the evidence, a party must convince you that the allegation is more likely true than not true. If the evidence on a particular issue is equally balanced, that issue has not been proven by a preponderance of the evidence. Therefore, the party having the burden of proving that issue has failed with respect to that particular issue.

I. Direct and Circumstantial Evidence or Inferences

1. Direct and Circumstantial Evidence Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as the testimony of an eyewitness. Circumstantial evidence (sometimes called inferences) consists of a chain of circumstances pointing to the existence of certain facts. Circumstantial evidence is based upon deductions or logical conclusions that you reach from the direct evidence. An example of direct and circumstantial evidence is followed. If a witness testified that he/she observed snow falling last night, that would be an example of direct evidence. On the other hand, if a witness testified that there was no snow on the ground before going to sleep and that when he/she arose in the morning the ground was snow covered, the jurors could infer from these facts that it snowed during the night. That would be an example of circumstantial evidence. You may consider both direct and circumstantial evidence in deciding this case. The law permits you to give equal weight to both, but it is for you to decide how much weight to give to any evidence.

2. Inferences When deciding this case, you are permitted to draw inferences from the evidence. Inferences are deductions or logical conclusions drawn from the evidence. Use logic, your collective common knowledge, and your common sense when determining what inferences can be made from the evidence.

J. Credibility

You will have to decide which witnesses to believe and which witnesses not to believe. Regardless of whether the witness is a lay person or expert, you may believe everything a witness said or only part of it or none of it. In deciding what testimony to believe, you may take into consideration:

1. the witness interest, if any in the outcome of this case; 2. the accuracy of the witness recollection; 3. the witness ability to know what he/she is talking about; 4. the reasonableness of the testimony; 5. the witness demeanor on the stand; 6. the witness candor or evasion; 7. the witness willingness or reluctance to answer; 8. the inherent believability of the testimony; 9. the presence of any inconsistent or contradictory statements.

K. False in One - False in All

[A trial judge has the discretion to give this charge in any situation in which the judge reasonably believes a jury may find a basis for its application. See State v. Ernst, 32 N.J. 567 (1960). When given, this charge usually will follow the section on credibility.]

(Sample l) If you believe that any witness deliberately lied to you, on any fact significant to your decision in this case, you have the right to reject all of that witnesss testimony. However in your discretion you may believe some of the testimony and not believe other parts of the testimony.

L. Damages

The judge will now instruct the jurors on the law governing damages in the event you decide the liability issue in favor of the plaintiff. The fact that the judge instructs you on damages should not be considered as suggesting any view of the judge about which party is entitled to prevail in this case. Instructions on damages are given for your guidance in the event they find that the plaintiff is entitled to a verdict. The judge is required to provide instructions on damages in all cases where the trial includes a claim for damages. The plaintiff has the burden of establishing by a preponderance of the evidence each item of damages that he/she claims. The plaintiff must also prove that the damages were the natural and probable consequences of the defendants negligence. The accident must have been a proximate cause of the damages. Damages may not be based on conjecture or speculation. In this case the plaintiff is seeking the following types of damages [select the appropriate categories]: 1. medical expenses [Charge 6. ll A.]; 2. past and future lost wages [Charge 6.11D.]; 3. pain, suffering, disability, impairment and loss of enjoyment of life [Charge 6. ll F. & G.]. In addition, the plaintiffs spouse is seeking compensation in what we call a per quod claim [Charge 6.12].

M. No Prejudice, Passion, Bias or Sympathy

Your oath as jurors requires you to decide this case fairly and impartially, without sympathy, passion, bias or prejudice. You are to decide this case based solely upon the evidence that you find believable and in accordance with the rules of law that the judge gives you. Sympathy is an emotion which is normal for human beings. No one can be critical of you for feeling some degree of sympathy in this matter. However, that sympathy must play no part in your thinking and in the decision you reach in the jury room. Similarly, your decision must not be based upon bias or prejudice which you might have developed during the trial, for or against any party. Your duty is to decide this case impartially and a decision based on sympathy, passion, bias or prejudice would violate that duty.

N. Deliberations

Jurors are not advocates for either party. You are judges of the facts. Your sole interest is to determine the truth from the evidence in the case. It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without compromising your individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with the other jurors.

O. Alternates

There are now (seven/eight) of you in the jury box. Six of you will make up the jury which will deliberate and decide the case. The other(s) will be alternate jurors who will participate if one of the other jurors is unable to continue for some reason. Then the alternate will serve as a replacement. [See R. 1:8-2(d).]

P. Verdict

Since this is a civil case, any verdict of 5-1 or 6-0 is a legal verdict. Therefore, it is not necessary that all six jurors agree on each question. An agreement of any five jurors is sufficient. All six jurors must deliberate fully and fairly on each and every question, and all six jurors must determine and vote upon each question. It is not necessary that the same five jurors agree upon the answers to all questions. Whenever at least five jurors have agreed to any answer, that question has been decided, and you may move on to consider the remaining questions in the case if it is appropriate to do so. All six jurors must participate fully in deliberating on the remaining questions. A juror who has been outvoted on any question shall continue to deliberate with the other jurors fairly, impartially, honestly and conscientiously to decide the remaining questions. Each juror must consider each question with an open mind. When at least five of you have agreed upon a verdict, knock on the jury room door. Indicate to the attendant that you have reached a verdict and say nothing more. The attendant will escort you back to the jury box so that the court may receive your verdict.

Q. Jury Verdict Sheet

The judge will prepare a jury verdict sheet which the judge believes should make your task simpler. The judge will be sending that sheet with you to the jury room. The sheet has questions that you must consider and answer within the framework of the instructions that the judge has given you.

R. Communications with Court

After you have begun deliberations, all communications are done by sending a note from your foreperson. Knock on the door and hand the note to the attendant. No member of the jury should communicate with anyone outside the jury room except in this fashion. No member of the jury should indicate at any time how the jury stands numerically or otherwise until after you have reached a verdict. When the judge receives your note that it has reached a verdict, the attorneys will be gathered, and the judge will have the entire jury into court to receive the verdict. [Note: the jury may have the foreperson read the verdict sheet or the judge may ask the question on the verdict sheet and have the foreperson respond and give the vote.] Should you desire to communicate for any other reason, you must send a note in the same fashion. After the judge has your note, the judge will discuss it with counsel and then reply to you in open court on the record.                                  

A Guilty Plea Did Not Estop an Insured's Assertion that He Did Not Commit Assault; State Farm and Casualty Co. v. Connolly 371 N.J. Super 119 (App. Di

In a declaratory judgment action dealing with a policy exclusion for injuries intended or expected by the insured, summary judgment should not have been granted based only on the fact that the insured had pleaded guilty to third degree aggravated assault where the insured denied committing the assault and the insured's prior inconsistent statement was admissible to impeach his credibility, but judicial estoppel did not bar the insured from attempting to rebut or explain the circumstances surrounding his guilty plea.

Saturday, February 12, 2011

Contested Probate NJ

Contested Probate



Do you think you're entitled to money or might be entitled to money from an estate or trust? Do you believe that someone is unfairly claiming money or property that is rightfully yours? Has The Executor of Adminsitration of The Estate not done their job? If so, and you are a prospective plaintiff or defendant, then you may need an attorney to protect your rights.

Executor Duties and Responsibilities

At some point in time, you may be asked to serve as the executor of the estate of a relative or friend, or you may ask someone to serve as your executor. An executor's job comes with many legal obligations. Under certain circumstances, an executor can even be held personally liable for unpaid estate taxes. Let's review the major duties involved, which we've set out below.

In General, the executor's job is to

1. Administer the estate--i.e., collect and manage assets, file tax returns and pay taxes and debts--and 2. Distribute any assets or make any distributions of bequests, whether personal or charitable in nature, as the deceased directed (under the provisions of the will).

Let's take a look at some of the specific steps involved and what these responsibilities can mean. Chronological order of the various duties may vary.

Step 1: Probate. The executor must "probate" the will. Probate is a process by which a will is admitted. This means that the will is given legal effect by the court. The court's decision that the will was validly executed under state law gives the executor the power to perform his or her duties under the provisions of the will.

Step 2: Manage the Estate. The executor takes legal title to the assets in the probate estate. The probate court will sometimes require a public accounting of the estate assets. The assets of the estate must be found and may have to be collected. As part of the asset management function, the executor may have to liquidate or run a business or manage a securities portfolio. To sell marketable securities or real estate, the executor will have to obtain stock power, tax waivers, file affidavits, and so on.

Step 3: Take Care of Tax Matters. The executor is legally responsible for filing necessary income and estate-tax returns (federal and state) and for paying all death taxes (i.e., estate and inheritance). The executor can, in some cases be held personally liable for unpaid taxes of the estate. Tax returns that will need to be filed can include the estate's income tax return (both federal and state), the federal estate-tax return, the state death tax return (estate and/or inheritance), and the deceased's final income tax return (federal and state). Taxes usually must be paid before other debts. In many instances, federal estate-tax returns are not needed as the size of the estate will be under the amount for which a federal estate-tax return is required.

An employer identification number ("EIN") should be obtained for the estate; this number must be included on all returns and other tax documents having to do with the estate. The executor should also file a written notice with the IRS that he/she is serving as the fiduciary of the estate. This gives the executor the authority to deal with the IRS on the estate's behalf.

Often it is necessary to hire an appraiser to value certain assets of the estate, such as a business, pension, or real estate, since estate taxes are based on the "fair market" value of the assets. After the filing of the returns and payment of taxes, the Internal Revenue Service will generally send some type of estate closing letter accepting the return. Occasionally, the return will be audited.

Step 4: Pay the Debts. The claims of the estate's creditors must be paid. Sometimes a claim must be litigated to determine if it is valid. Any estate administration expenses, such as attorneys', accountants' and appraisers' fees, must also be paid.

Step 5: Distribute the Assets. After all debts and expenses have been paid, the distribute the assets with extra attention and meticulous bookkeeping by the executor. Frequently, beneficiaries can receive partial distributions of their inheritance without having to wait for the closing of the estate.

WHO SHOULD SERVE AS EXECUTOR? The executor's legally imposed fiduciary duty is to act in all ways in the best interests of the estate and its beneficiaries. The duties of an executor can be difficult and challenging and should not be taken lightly.

We believe an executor needs not only the skills, training, and experience necessary to do the project--casual or part-time attention is not likely to achieve success.

Under increasingly complex laws and rulings, particularly with respect to taxes, an executor can be in charge for two or three years before the estate administration is completed. If the job is to be done without unnecessary cost and without causing undue hardship and delay for the beneficiaries of the estate, the executor should have an understanding of the many problems involved and an organization created for settling estates. In short, an executor should have experience.

FILING SUIT IN AN ESTATE CONTEST

RULE 4:84. COMPLAINTS IN CASES IN WHICH SURROGATE'S COURT NOT ABLE TO ACT

4:84-1. In General

In any case in which, under R. 4:82, the Surrogate's Court may not act, any person in interest may file a complaint and apply for an order directed to all other interested parties to show cause why the relief sought should not be granted. Service shall be as provided by R. 4:67-3.

4:84-2. Probate in the Superior Court

If a will is sought to be proved in the Superior Court, proceedings for discovery shall be available pursuant to R. 4:10, R. 4:12 to 4:19 inclusive, R. 4:21 and R. 4:23. On the taking of a deposition, a photocopy of the will shall be marked for identification by the person before whom the deposition is taken. If the will is admitted to probate, the judgment of the Superior Court shall direct that the will be filed with and recorded by the Surrogate's Court. Letters of appointment shall then be issued by the Surrogate's Court.

4:84-3. Contested Administration

Where administration of an estate has been contested, the judgment of the Superior Court granting administration shall direct issuance and recording of letters of administration by the Surrogate's Court.

4:84-4. Appointment of Substituted Trustees

An action for the appointment of a substituted trustee (a trustee not named in the trust document) of an inter vivos or testamentary trust shall be brought pursuant to R. 4:83. The complaint shall have attached a copy of the trust instrument and the acceptance by the person or persons seeking the appointment. The order to show cause shall be served upon all persons having an interest in the trust, vested or contingent, except as otherwise provided by R. 4:26-3 (virtual representation), and upon any trustees then serving. The judgment shall direct the issuance by the Surrogate's Court of letters of trusteeship.

4:84-5. Appointment of Administrator Pendente Lite or Other Limited Administrator

No order appointing an administrator pendente lite or other limited administrator shall be entered by the Superior Court without either notice to the persons in interest or their written consent, unless it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable damage will result before notice can be served and a hearing had thereon. If an order is granted without notice, it shall give any person in interest leave to move for the discharge of the administrator on no more than 2 days' notice. This rule shall not apply to the administrator ad prosequendum in an action for wrongful death.

RULE 4:85. REVIEW BY SUPERIOR COURT OF ACTIONS BY SURROGATE'S COURT: GENERAL PROVISIONS

4:85-1. Complaint; Time for Filing

If a will has been probated by the Surrogate's Court or letters testamentary or of administration, guardianship or trusteeship have been issued, any person aggrieved by that action may, upon the filing of a complaint setting forth the basis for the relief sought, obtain an order requiring the personal representative, guardian or trustee to show cause why the probate should not be set aside or modified or the grant of letters of appointment vacated, provided, however, the complaint is filed within four months after probate or of the grant of letters of appointment, as the case may be, or if the aggrieved person resided outside this State at the time of the grant of probate or grant of letters, within six months thereafter. If relief, however, is sought based upon R. 4:50-1(d), (e) or (f) or R. 4:50-3 (fraud upon the court) the complaint shall be filed within a reasonable time under the circumstances. The complaint and order to show cause shall be served as provided by R. 4:67-3. Other persons in interest may, on their own motion, apply to intervene in the action.

4:85-2. Enlargement of Time

The time periods prescribed by R. 4:85-1 may be extended for a period not exceeding 30 days by order of the court upon a showing of good cause and the absence of prejudice.

4:85-3. After-Discovered Will

(a) Order to Show Cause. Where administration has been granted and subsequently a will is offered for probate or where probate of a will has been granted and subsequently a later will is offered for probate, the person offering such will may, upon the filing of a complaint, move without notice for an order requiring all interested persons to show cause why probate of such will should not be granted. The complaint shall be filed in the county where the original administration or probate was granted. If, on the return date or thereafter, new probate is granted, the court shall require the administrator or prior executor to make final settlement of his or her account and thereafter shall make such order respecting commissions as is appropriate.

(b) Probate by Surrogate. If, on the return date of the order to show cause, there is no objection to the offering of the after-discovered will for probate, the Surrogate may enter an order that it be lodged for probate and thereafter proceed with probate unless a caveat has been filed or doubt arises from the face of the will.

more info at http://www.njlaws.com/contested_probate.htm

RESTRAINING ORDERS in DOMESTIC VIOLENCE CASES

RESTRAINING ORDERS in DOMESTIC VIOLENCE CASES

Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey.

RESTRAINING ORDERS in DOMESTIC VIOLENCE CASES

by Kenneth A. Vercammen, Esq.

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

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

(2) An order granting exclusive possession to the plaintiff of the residence or household regardless of whether the residence or household is jointly or solely owned by the parties or jointly or solely leased by the parties...

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

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

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

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

(8) An order requiring that the defendant make or continue to make rent or mortgage payments on the residence occupied by the victim if the defendant is found to have a duty to support the victim or other dependent household members...

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

(10) An order awarding emergent monetary relief to the victim and other dependents, if any. An ongoing obligation of support shall be determined at a later date pursuant to applicable law...²

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

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

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

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

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

Caselaw protects victims. In Pepe v Pepe, 258 N.J. Super. 157 (Chan. Div. 1992) held that the confidentiality provision of record keeping under the Domestic Violence act applies to the records kept on file with the Clerk of the Superior Court.The court held that in determining whether or not a statutory imposed confidential record should be made public, the court must consider whether the release of the documents will be harmful to the victim, whether adverse publicity will be a factor and whether access to court records will discourage the victim from coming forward.Despite the substantial financial burden and life restrictions (often referred to as penalties), the burden of proof in a DOMESTIC VIOLENCE hearing is only ³by a preponderance of evidence.² Hopefully, parties will put best interests of children ahead of short term animosity. Financial limitations often limit the family ability to become involved in lengthy divorce and custody battles.

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

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

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

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

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

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

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

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

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

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

(1)The relationship of the parties;

(2)The sex of the parties;

(3)The time and date of the incident;

(4)The number of domestic violence calls investigated;

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

(6)The type and extent of abuse;

(7)The number and type of weapons involved;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(5)In determining custody and parenting time the protection of the victim's safety; and

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


more info at http://www.njlaws.com/RESTRAINING_ORDERS_in_DOMESTIC_VIOLENCE_CASES.htm