Right to Bail if Charged with a Criminal Offense |
Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey. As set forth in NJ Practice, Vol. 31, Criminal Practice and Procedure, (1997), Sec 292, the defendant has a right to bail before conviction except if he/she is charged with a crime punishable by death and the prosecutor presents proof that there is a likelihood of conviction and reasonable grounds to believe that the death penalty may be imposed. 3 This means that absent exceptional circumstances the defendant has a right to pretrial liberty if the defendant provides surety in such amount as in the judgment of the court will insure the defendant's appearance at trial. 4 Stated in other terms, the right to bail means that in the absence of exceptional circumstances the defendant has the right to have the court set bail in an amount which does not exceed that which will insure defendant's appearance at trial, and if the defendant can "come up" with cash in that amount, or 10 percent of that amount if the defendant is eligible to be released on 10 percent cash bail,5 or a bond or other surety, then the defendant must be released. Immediately retain a local criminal attorney. Don't wait for a Public Defender to look at your case down the road while you sit in jail. BAIL PROCEDURES Any person unable to post bail shall have his or her bail reviewed by a Superior Court judge not later than the next day which is neither a Saturday, Sunday or legal holiday. 7 A first motion for a reduction of bail shall be held by the Court no later than 7 days after it is filed.8 AMOUNT OF BAIL R. 3:26-1(a) provides in relevant part that "{a}ll persons, shall be bailable before conviction on such terms as, in the judgment of the court, will insure their presence in court when required having regard for their background, residence, employment and family status and, particularly, the general policy against unnecessary sureties and detention." These factors are specified in more detail in State v. Johnson 10 as follows: seriousness of the charge; the likelihood of conviction and the extent of punishment; defendant's criminal record, if any, and previous record on bail, if any; defendant's reputation and mental condition; the length of his/her residence in the community; defendant's family ties and relationships; defendant's employment status, record of employment and financial condition; the identity of responsible members of the community vouching for his/her reliability; and any other factors indicating defendant's mode of life, or ties to the community. The likelihood of flight must be considered in light of these factors and bail set accordingly. R. 3:26-2[c]. R. 3:26-2[d]. 61 N.J. 351, 294 A.2d 245 [1972]. The Courts often examine some of the following criteria: RESIDENCE - Lived at present residence one year or more. PRIOR RECORD No convictions. FAMILY TIES - Lives with family and has frequent contact with other relatives. EMPLOYMENT - Has regular job less than four months, or receiving Unemployment Compensation, or welfare aid, or supported by family or savings. TOTAL TIME IN NEW JERSEY - Ten years or more residence or business in New Jersey. MISCELLANEOUS FACTORS MAKING FLIGHT UNLIKELY - Good Health CONCLUSION If facing a criminal offense, retain an attorney to represent you immediately. A criminal attorney can make a motion to reduce bail RULE 3:26. BAIL 3:26-1. Right to Bail Before Conviction (a) Persons Entitled; Standards for Fixing. All persons, except those charged with crimes punishable by death when the prosecutor presents proof that there is a likelihood of conviction and reasonable grounds to believe that the death penalty may be imposed, shall be bailable before conviction on such terms as, in the judgment of the court, will ensure their presence in court when required. The factors to be considered in setting bail are: (1) the seriousness of the crime charged against defendant, the apparent likelihood of conviction, and the extent of the punishment prescribed by the Legislature; (2) defendant's criminal record, if any, and previous record on bail, if any; (3) defendant's reputation, and mental condition; (4) the length of defendant's residence in the community; (5) defendant's family ties and relationships; (6) defendant's employment status, record of employment, and financial condition; (7) the identity of responsible members of the community who would vouch for defendant's reliability; (8) any other factors indicating defendant's mode of life, or ties to the community or bearing on the risk of failure to appear, and, particularly, the general policy against unnecessary sureties and detention. In its discretion the court may order the release of a person on that person's own recognizance. The court may also impose terms or conditions appropriate to the defendant's release including conditions necessary to protect persons in the community. (b) On Failure to Indict. If a person committed for a crime punishable by death is not indicted within 3 months after commitment, a judge of the Superior Court, for good cause shown, may admit the person to bail. (c) On Failure to Move Indictment. If an indictment or accusation is not moved for trial within 6 months after arraignment, a judge of the Superior Court, for cause shown, may discharge the defendant upon the defendant's own recognizance. (d) Extradition Proceedings. Where a person has been arrested in any extradition proceeding, that person may be admitted to bail except where that person is charged with a crime punishable by death. Note: Source-R.R. 3:9-1(a)(b)(c)(d); paragraph (a) amended September 28, 1982 to be effective immediately; paragraphs (a), (b), (c) and (d) amended July 13, 1994 to be effective January 1, 1995; paragraph (a) amended July 10, 1998 to be effective September 1, 1998. 3:26-2. Authority to Set Bail (a) Authority to Set Initial Bail. A Superior Court judge may set bail for a person charged with any offense. Bail for any offense except murder, kidnapping, manslaughter, aggravated manslaughter, aggravated sexual assault, sexual assault, aggravated criminal sexual contact, a person arrested in any extradition proceeding or a person arrested under N.J.S.A. 2C:29-9b for violating a restraining order may be set by any other judge, or in the absence of a judge, by a municipal court administrator or deputy court administrator. (b) Initial Bail Set. Initial bail shall be set pursuant to R. 3:4-1(a) or (b) on indictable or non-indictable offenses. (c) Review of Initial Set. Any person unable to post bail shall have his or her bail reviewed by a Superior Court judge no later than the next day which is neither a Saturday, Sunday nor a legal holiday. Except in those indictable cases in which a Superior Court judge has set bail, a municipalcourt judge has the authority to make bail revisions up to and including the time of the defendant's first appearance before the court. A municipal court judge has the authority to make bail revisions on any non-indictable offense at any time during the course of the proceedings. (d) Bail Reductions. A first motion for bail reduction shall be heard by the court no later than seven days after it is filed. Note: Source-R.R. 3:9-3(a)(b)(c); amended July 24, 1978 to be effective September 11, 1978; amended May 21, 1979 to be effective June 1, 1979; amended August 28, 1979 to be effective September 1, 1979; amended July 26, 1984 to be effective September 10, 1984; caption amended, former text amended and redesignated paragraph (a) and new paragraphs (b), (c) and (d) adopted July 13, 1994 to be effective January 1, 1995; paragraph (b) amended January 5, 1998 to be effective February 1, 1998. 3:26-3. Bail for Witness (a) Authority to Issue. A Superior Court judge may, on application, conduct proceedings under N.J.S.A. 2C:104-1 et seq. as to any person who can give testimony relevant to the prosecution or defense of a pending indictment, accusation, or complaint for a crime or a criminal investigation before a grand jury. (b) Application. The application shall be captioned in Superior Court and entitled "In the Matter of (name of person alleged to be a material witness)". The application shall include a copy of the pending indictment, complaint, or accusation and an affidavit containing: (1) the name and address of the person alleged to be a material witness, (2) a summary of the facts believed to be known by the alleged material witness and the relevance to the criminal action or investigation, (3) the grounds for belief that the person has material and necessary information concerning the pending criminal action or investigation, and (4) the reasons why the alleged material witness is unlikely to respond to a subpoena. If the application requests an arrest warrant, the affidavit shall set forth why immediate arrest is necessary. (c) Order to Appear. If there is probable cause to support issuance of a material-witness order against the person named in the application, the court may order the person to appear at a hearing to determine whether the person should be adjudged a material witness. The order and a copy of the application shall be served personally on the alleged material witness at least 48 hours before the hearing, unless the judge adjusts the time period for good cause, and shall advise the person of: (1) the time and place of the hearing, and (2) the right to be represented by an attorney and to have an attorney appointed if the person cannot afford one. (d) Warrant for Immediate Detention. If there is clear and convincing evidence that the person will not be available as a witness unless immediately detained, the court may issue an order requiring that the person be brought before the court immediately. If the detention does not take place during regular court hours, the person shall be brought to the emergency-duty Superior Court judge. The judge shall inform the person: (1) the reason for detention, (2) the time and place of the hearing to determine whether the person is a material witness, and (3) that the person has a right to an attorney and to have an attorney appointed if the person cannot afford one. The judge shall set conditions for release, or, if there is clear and convincing evidence that the person will not be available as a witness unless detention is continued, the judge may order the person held until the material-witness hearing, which shall take place as soon as practicable but no later than 48 hours after detention. (e) Detention Without Prior Court Authorization. Where a law enforcement officer hasdetained an alleged material witness without prior court authorization, the law enforcement officer shall immediately bring the person before a Superior Court judge. If the detention does not take place during regular court hours, the person shall be brought to the emergent duty Superior Court judge. The judge shall determine whether there is probable cause to believe that the person is a material witness of a crime and, if an indictment, accusation, or complaint for that crime has not issued or if a grand jury has not commenced a criminal investigation of that crime, the judge shall determine whether there is probable cause to believe that, within 48 hours of the detention, an indictment, accusation, or complaint will issue or a grand jury investigation will commence. The judge will then proceed as if an application for an order had been made under paragraph (b). (f) Material Witness Hearing. At the material-witness hearing, the person shall have the rights: (1) to be represented by an attorney and to have an attorney appointed if the person cannot afford one, (2) to be heard and to present witnesses and evidence, and (3) unless otherwise sealed by the court for exceptional circumstances, to have all of the evidence in support of the application, and (4) to confront and cross-examine witnesses. If there is probable cause to believe that the person possesses information material to the prosecution of a defense of a pending indictment, accusation or complaint for a crime, or a criminal investigation before a grand jury and is unlikely to respond to subpoena, the judge shall: (1) set forth findings of facts on the record, and (2) set the conditions of release of the material witness. (g) Conditions of Release or Detention. Conditions of release for a material-witness or for a person held on an application for a material-witness order shall be the least restrictive to effect the order of the court including but not limited to: (1) placing the witness in the custody of a designated person or organization agreeing to supervise the person; (2) restricting the travel, association, or place of abode of the person during the period of detention; (3) requiring the person to report; (4) setting bail, or (5) imposing other reasonable restrictions on the material witness. No person may be detained unless the judge finds, by clear and convincing evidence, that detention is the only method that will secure the appearance of the material witness. A person detained as a material witness or pending a material-witness hearing shall be lodged in appropriate quarters and shall not be held in a jail or prison. (h) Deposition. The prosecutor, defendant, or material witness may apply to the Superior Court for an order directing that a deposition be taken to preserve the witness's testimony, for use at trial if the witness becomes unavailable, as provided by R. 3:13-2. After a deposition has been taken, the judge shall vacate the material-witness order and impose the least restrictive conditions to secure the appearance of the material witness. (i) Reconsideration of Material Witness Order. On motion of the material witness, prosecutor, or defendant, a material witness order may be reconsidered at any time by the court that entered the order. Note: Source-R.R. 3:9-4; first paragraph re-designated paragraph (a) and paragraphs (b), (c) (d), (e), (f) and (g) added July 14, 1992 to be effective September 1, 1992; paragraph (g) amended July 13, 1994 and December 9, 1994, to be effective January 1, 1995; paragraphs (a), (b), (c) and (d) amended, former paragraphs (e), (f), and (g) amended and redesignated as paragraphs (f), (g), and (h), and new paragraphs (e) and (i) adopted July 10, 1998 to be effective September 1, 1998. 3:26-4. Form and Place of Deposit; Location of Real Estate; Record of Recognizances,Discharge and Forfeiture Thereof (a) Deposit of Bail. A person admitted to bail shall, together with that person's sureties, sign and execute a recognizance before the person authorized to take bail or, if the defendant is in custody, the person in charge of the place of confinement. The recognizance shall contain the terms set forth in R. 1:13-3(b) and shall be conditioned upon the defendant's appearance at all stages of the proceedings until final determination of the matter, unless otherwise ordered by the court. One or more sureties may be required. Cash may be accepted, and in proper cases no security need be required. A corporate surety shall be one approved by the Commissioner of Insurance and shall execute the recognizance under its corporate seal, cause the same to be duly acknowledged and shall annex thereto proof of authority of the officers or agents executing the same and of corporate authority and qualification. Bail given in the Superior Court shall be deposited with the clerk of the county in which the offense was committed, provided that upon order of the court bail shall be transferred from the county of deposit to the county in which defendant is to be tried. Real estate offered as bail for indictable and non-indictable offenses shall be approved by and deposited with the clerk of the county in which the offense occurred and not with the Municipal Court clerk. In any county, with the approval of the Assignment Judge, a program may be instituted for the deposit in court of cash in the amount of 10 percent of the amount of bail fixed. (b) Limitation on Individual Surety. Unless the court for good cause otherwise permits, no surety, other than an approved corporate surety, shall enter into a recognizance or undertaking for bail if there remains undischarged any previous recognizance or bail undertaken by that surety. (c) Real Estate in Other Counties. Real estate owned by a surety located in a county other than the one in which the bail is taken may be accepted, in which case the clerk of the court in which the bail is taken shall forthwith transmit a copy of the recognizance certified by that clerk to the clerk of the county in which the real estate is situated, who shall record it in the same manner as if the recognizance had been taken in that clerk's county. (d) Record of Recognizance. The clerk of every court, except the municipal court, before which any recognizance shall be entered into shall record immediately, in alphabetical order in a book kept for that purpose, the names of the persons entering into the recognizance, the amount thereof and the date of its acknowledgment. Such book shall be kept in the clerk's office of the county of which such court shall be held, and be open for public inspection. In municipal court proceedings the record of the recognizance shall be entered in the docket book maintained by the clerk. (e) Record of Discharge; Forfeiture. When any recognizance shall be discharged by court order upon proof of compliance with the conditions thereof or by reason of the judgment in any matter, the clerk of the court shall enter the word "discharged" and the date of discharge at the end of the record of such recognizance. When any recognizance is forfeited, the clerk of the court shall enter the word "forfeited", and the date of forfeiture at the end of the record of such recognizance, and shall give notice of such forfeiture to the county counsel. When real estate of the surety located in a county other than the one in which the bail was taken is affected, the clerk of the court in which such recognizance is given shall forthwith send notice of the discharge or forfeiture and the date thereof to the clerk of the county where such real estate is situated, who shall make the appropriate entry at the end of the record of such recognizance. (f) Cash Deposit. When a person other than the defendant deposits cash in lieu of bond,the person making the deposit shall file an affidavit concerning the lawful ownership thereof, and on discharge such cash may be returned to the owner named in the affidavit. (g) Ten Percent Cash Bail. Except in first or second degree cases as set forth in N.J.S.A. 2A:162-12 and unless the order setting bail specifies to the contrary, whenever bail is set pursuant to Rule 3:26-1, bail may be satisfied by the deposit in court of cash in the amount of ten-percent of the amount of bail fixed and defendant's execution of a recognizance for the remaining ninety percent. No surety shall be required unless the court fixing bail specifically so orders. When cash equal to ten-percent of the bail fixed is deposited pursuant to this Rule, if the cash is owned by someone other than the defendant, the owner shall charge no fee for the deposit other than lawful interest and shall submit an affidavit with the deposit so stating and also listing the names of any other persons for whom the owner has deposited bail. The person making the deposit authorized by this subsection shall file an affidavit concerning the lawful ownership thereof, and on discharge such cash may be returned to the owner named in the affidavit. Note: Source-R.R. 3:9-5(a)(b)(c)(d)(e)(f)(g). Paragraph (a) amended June 29, 1973 to be effective September 10, 1973; paragraph (a) amended July 16, 1979 to be effective September 10, 1979; paragraph (g) adopted November 5, 1986 to be effective January 1, 1987; paragraph (a) amended November 7, 1988 to be effective January 2, 1989; paragraphs (f) and (g) amended July 14, 1992 to be effective September 1, 1992; paragraphs (a), (b) and (c) amended July 13, 1994 to be effective September 1, 1994; paragraph (a) amended February 27, 1995 to be effective immediately. 3:26-5. Justification of Sureties Every surety, except an approved corporate surety, shall justify by affidavit and be required to describe therein the property by which the surety proposes to justify and the encumbrances thereon, the number and amount of other recognizances and undertakings for bail entered into by the surety and remaining undischarged, if any, and all the surety's other liabilities. No recognizance shall be approved unless the surety thereon shall be qualified. Note: Source-R.R. 3:9-6; amended July 13, 1994 to be effective September 1, 1994. 3:26-6. Forfeiture (a) Declaration; Notice. Upon breach of a condition of a recognizance, the court on its own motion shall order forfeiture of the bail, and the criminal division manager shall forthwith send notice of the forfeiture to county counsel, the defendant, and the surety. The notice shall direct that judgment will be entered as to any outstanding bail absent a written objection seeking to set aside the forfeiture, which must be filed within 45 days of the date of the notice. (b) Setting Aside. The court may direct that a forfeiture be set aside if its enforcement is not required in the interest of justice upon such conditions as it imposes. (c) Enforcement; Remission. When a forfeiture is not set aside or satisfied, the court shall, upon expiration of the 45 days provided for in paragraph (a), summarily enter a judgment of default for any outstanding bail and execution may issue thereon. After entry of such judgment, the court may remit it in whole or in part in the interest of justice. In any contested proceeding, county counsel shall appear on behalf of the government. County counsel shall be responsible for collection of forfeited amounts. Note: Source-R.R. 3:9-7 (a)(b)(c) (first sentence) (d); paragraphs (a) and (c) amended July 10, 1998 to be effective September 1, 1998. Consequences of a Criminal Guilty Plea 1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s) 2. Do you understand that if you plead guilty:
3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail. 4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing. 5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution. 6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty. 7. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty. 8. You must wait 5-10 years to expunge a first offense. 2C:52-3 9. You could be put on Probation. 10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your driver's license for 6 months - 2years. You must pay a Law Enforcement Officers Training and Equipment Fund penalty of $30. 11. You may be required to do Community Service. 12. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty. 13. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction. 14. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation. 15. You lose the presumption against incarceration in future cases. 2C:44-1 16. You may lose your right to vote. The defense of a person charged with a criminal offense is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of a criminal offense. Jail for Crimes and Disorderly Conduct: If someone pleads Guilty or is found Guilty of a criminal offense, the following is the statutory Prison/Jail terms. NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years; (2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years; (3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years; (4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months. 2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed: a. (1) $200,000.00 when the conviction is of a crime of the first degree; (2) $150,000.00 when the conviction is of a crime of the second degree; b. (1) $15,000.00 when the conviction is of a crime of the third degree; (2) $10,000.00 when the conviction is of a crime of the fourth degree; c. $1,000.00, when the conviction is of a disorderly persons offense; d. $500.00, when the conviction is of a petty disorderly persons offense; If facing any criminal charge, retain an experienced attorney immediately to determine you rights and obligations to the court. Current criminal charge researched by Kenneth Vercammen, Esq. 732-572-0500 |
Monday, October 17, 2011
Right to Bail if Charged with a Criminal Offense
