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

Monday, December 26, 2011

NJ Court Rule 4:22-17 Cruelty to Animals

NJ Court Rule 4:22-17 Cruelty to Animals

Our office represents people charged with offenses in Criminal Court, Juvenile and Municipal Court. We provide representation throughout New Jersey. Criminal charges can cost you. If convicted, you can face high fines, jail, Probation and other penalties. Don't give up! Our Law Office can provide experienced attorney representation for criminal violations. Our website njlaws.com provides information on criminal offenses we can be retained to represent people.

The following is current criminal laws plus amendments as of April, 2004 dealing with cruelty to animals:

4:22-17. a. A person who shall:

(1)Overdrive, overload, drive when overloaded, overwork, deprive of necessary sustenance, abuse, or needlessly kill a living animal or creature;

(2)Cause or procure any such acts to be done; or

(3)Inflict unnecessary cruelty upon a living animal or creature, or unnecessarily fail to provide a living animal or creature of which the person has charge either as an owner or otherwise with proper food, drink, shelter or protection from the weather, or leave it unattended in a vehicle under inhumane conditions adverse to the health or welfare of the living animal or creature--

Shall be guilty of a disorderly persons offense, and notwithstanding the provisions of N.J.S. 2C:43-3 to the contrary, for every such offense shall be fined not less than $250 nor more than $1,000, or be imprisoned for a term of not more than six months, or both, in the discretion of the court. In addition, the court (1) shall impose a term of community service of up to 30 days, and may direct that the term of community service be served in providing assistance to the New Jersey Society for the Prevention of Cruelty to Animals, a district (county) society for the prevention of cruelty to animals, or any other recognized organization concerned with the prevention of cruelty to animals or the humane treatment and care of animals, or to a municipality's animal control or animal population control program; (2) may require the violator to pay restitution or otherwise reimburse any costs for food, drink, shelter, or veterinary care or treatment, or other costs, incurred by any agency, entity, or organization investigating the violation, including but not limited to the New Jersey Society for the Prevention of Cruelty to Animals, a district (county) society for the prevention of cruelty to animals, any other recognized organization concerned with the prevention of cruelty to animals or the humane treatment and care of animals, or a local or State governmental entity; and (3) may impose any other appropriate penalties established for a disorderly persons offense pursuant to Title 2C of the New Jersey Statutes.

b. A person who shall purposely, knowingly, or recklessly:

(1)Torment, torture, maim, hang, poison, unnecessarily or cruelly beat, or needlessly mutilate a living animal or creature; or

(2)Cause or procure any such acts to be done--

Shall be guilty of a crime of the fourth degree.

If the animal or creature is cruelly killed or dies as a result of a violation of this subsection, or the person has a prior conviction for a violation of this subsection, the person shall be guilty of a crime of the third degree.

For a violation of this subsection, in addition to imposing any other appropriate penalties established for a crime of the third degree or a crime of the fourth degree, as the case may be, pursuant to Title 2C of the New Jersey Statutes, the court shall impose a term of community service of up to 30 days, and may direct that the term of community service be served in providing assistance to the New Jersey Society for the Prevention of Cruelty to Animals, a district (county) society for the prevention of cruelty to animals, or any other recognized organization concerned with the prevention of cruelty to animals or the humane treatment and care of animals, or to a municipality's animal control or animal population control program. The court also may require the violator to pay restitution or otherwise reimburse any costs for food, drink, shelter, or veterinary care or treatment, or other costs, incurred by any agency, entity, or organization investigating the violation, including but not limited to the New Jersey Society for the Prevention of Cruelty to Animals, a district (county) society for the prevention of cruelty to animals, any other recognized organization concerned with the prevention of cruelty to animals or the humane treatment and care of animals, or to a municipality's animal control or animal population control program.

c. If a juvenile is adjudicated delinquent for an act which, if committed by an adult, would constitute a disorderly persons offense pursuant to subsection a. of this section or a crime of the third degree or crime of the fourth degree pursuant to subsection b. of this section, the court also shall order the juvenile to receive mental health counseling by a licensed psychologist or therapist named by the court for a period of time to be prescribed by the licensed psychologist or therapist.

Amended 2003, c.232, s.1.

4:22-18. Carrying animal in cruel, inhumane manner; disorderly persons offense A person who shall carry, or cause to be carried, a living animal or creature in or upon a vehicle or otherwise, in a cruel or inhumane manner, shall be guilty of a disorderly persons offense and punished as provided in subsection a. of R.S. 4:22-17.

Amended 2001, c.229, s.2.

4:22-19. Failure to care for, destruction of impounded animals; penalties; collection A person who shall:

a. Impound or confine, or cause to be impounded or confined, in a pound or other place, a living animal or creature, and shall fail to supply it during such confinement with a sufficient quantity of good and wholesome food and water; or

b. Destroy or cause to be destroyed any such animal by hypoxia induced by decompression or in any other manner, by the administration of a lethal gas other than an inhalant anesthetic, or in any other manner except by a method of euthanasia generally accepted by the veterinary medical profession as being reliable, appropriate to the type of animal upon which it is to be employed, and capable of producing loss of consciousness and death as rapidly and painlessly as possible for such animal shall, in the case of a violation of subsection a., be guilty of a disorderly persons offense and shall be punished as provided in subsection a. of R.S. 4:22-17; or, in the case of a violation of subsection b., be subject to a penalty of $25 for the first offense and $50 for each subsequent offense. Each animal destroyed in violation of subsection b. shall constitute a separate offense. The penalty shall be collected in accordance with the "Penalty Enforcement Law of 1999," P.L. 1999, c.274 (C. 2A:58-10 et seq.) and all money collected shall be remitted to the State.

This section shall apply to kennels, pet shops, shelters and pounds as defined and licensed pursuant to P.L. 1941, c.151 (C.4:19-15.1 et seq.); to pounds and places of confinement owned and operated by municipalities, counties or regional governmental authorities; and to every contractual warden or impounding service, any provision to the contrary in this title notwithstanding.

Amended 2001, c.229, s.3.

4:22-20. Abandoning disabled animal to die in public place; disorderly persons offense a. A person who shall abandon a maimed, sick, infirm or disabled animal or creature to die in a public place, shall be guilty of a disorderly persons offense.

b. A person who shall abandon a domesticated animal shall be guilty of a disorderly persons offense. The violator shall be subject to the maximum $1,000 penalty.

4:22-24. Animal fighting crimes 4:22-24. A person who shall: a. Keep, use, be connected with or interested in the management of, or receive money for the admission of a person to, a place kept or used for the purpose of fighting or baiting a living animal or creature;

b. Be present and witness, pay admission to, encourage or assist therein;

c. Permit or suffer a place owned or controlled by him to be so used; d. For amusement or gain, cause, allow, or permit the fighting or baiting of a living animal or creature;

e. Own, possess, keep, train, promote, purchase, or knowingly sell a living animal or creature for the purpose of fighting or baiting that animal or creature; or

f. Gamble on the outcome of a fight involving a living animal or creature-- Shall be guilty of a crime of the third degree.

4:22-25.1. Motorist hitting domestic animal to stop; report Each person operating a motor vehicle who shall knowingly hit, run over, or cause injury to a cat, dog, horse or cattle shall stop at once, ascertain the extent of injury, report to the nearest police station, police officer, or notify the nearest Society for the Prevention of Cruelty to Animals and give his name, address, operator's license and registration number, and also give the location of the injured animal.

4:22-25.2. Violations; petty disorderly persons offense 2. Any person who shall violate any of the provisions of section 1 of P.L. 1939, c.315 (C.4:22-25.1) shall be guilty of a petty disorderly persons offense.

4:22-26 Penalties for various acts constituting cruelty.

4:22-26. A person who shall:

a. (1) Overdrive, overload, drive when overloaded, overwork, deprive of necessary sustenance, abuse, or needlessly kill a living animal or creature, or cause or procure any such acts to be done;

(2)Torment, torture, maim, hang, poison, unnecessarily or cruelly beat, or needlessly mutilate a living animal or creature, or cause or procure any such acts to be done;

(3)Cruelly kill, or cause or procure the cruel killing of, a living animal or creature, or otherwise cause or procure the death of a living animal or creature from commission of any act described in paragraph (2) of this subsection;

b.(Deleted by amendment, P.L. 2003, c.232).

c. Inflict unnecessary cruelty upon a living animal or creature, or unnecessarily fail to provide a living animal or creature of which the person has charge either as an owner or otherwise with proper food, drink, shelter or protection from the weather, or leave it unattended in a vehicle under inhumane conditions adverse to the health or welfare of the living animal or creature;

d. Receive or offer for sale a horse that is suffering from abuse or neglect, or which by reason of disability, disease, abuse or lameness, or any other cause, could not be worked, ridden or otherwise used for show, exhibition or recreational purposes, or kept as a domestic pet without violating the provisions of this article;

e. Keep, use, be connected with or interested in the management of, or receive money or other consideration for the admission of a person to, a place kept or used for the purpose of fighting or baiting a living animal or creature;

f. Be present and witness, pay admission to, encourage, aid or assist in an activity enumerated in subsection e. of this section;

g. Permit or suffer a place owned or controlled by him to be used as provided in subsection e. of this section;

h. Carry, or cause to be carried, a living animal or creature in or upon a vehicle or otherwise, in a cruel or inhumane manner;i. Use a dog or dogs for the purpose of drawing or helping to draw a vehicle for business purposes;

j. Impound or confine or cause to be impounded or confined in a pound or other place a living animal or creature, and shall fail to supply it during such confinement with a sufficient quantity of good and wholesome food and water;

k. Abandon a maimed, sick, infirm or disabled animal or creature to die in a public place;

l. Willfully sell, or offer to sell, use, expose, or cause or permit to be sold or offered for sale, used or exposed, a horse or other animal having the disease known as glanders or farcy, or other contagious or infectious disease dangerous to the health or life of human beings or animals, or who shall, when any such disease is beyond recovery, refuse, upon demand, to deprive the animal of life;

m. Own, operate, manage or conduct a roadside stand or market for the sale of merchandise along a public street or highway; or a shopping mall, or a part of the premises thereof; and keep a living animal or creature confined, or allowed to roam in an area whether or not the area is enclosed, on these premises as an exhibit; except that this subsection shall not be applicable to: a pet shop licensed pursuant to P.L. 1941, c. 151 (C. 4:19-15.1 et seq.); a person who keeps an animal, in a humane manner, for the purpose of the protection of the premises; or a recognized breeders' association, a 4-H club, an educational agricultural program, an equestrian team, a humane society or other similar charitable or nonprofit organization conducting an exhibition, show or performance;

n. Keep or exhibit a wild animal at a roadside stand or market located along a public street or highway of this State; a gasoline station; or a shopping mall, or a part of the premises thereof;

o. Sell, offer for sale, barter or give away or display live baby chicks, ducklings or other fowl or rabbits, turtles or chameleons which have been dyed or artificially colored or otherwise treated so as to impart to them an artificial color;

p. Use any animal, reptile, or fowl for the purpose of soliciting any alms, collections, contributions, subscriptions, donations, or payment of money except in connection with exhibitions, shows or performances conducted in a bona fide manner by recognized breeders' associations, 4-H clubs or other similar bona fide organizations;

q. Sell or offer for sale, barter, or give away living rabbits, turtles, baby chicks, ducklings or other fowl under two months of age, for use as household or domestic pets;

r. Sell, offer for sale, barter or give away living baby chicks, ducklings or other fowl, or rabbits, turtles or chameleons under two months of age for any purpose not prohibited by subsection q. of this section and who shall fail to provide proper facilities for the care of such animals;

s. Artificially mark sheep or cattle, or cause them to be marked, by cropping or cutting off both ears, cropping or cutting either ear more than one inch from the tip end thereof, or half cropping or cutting both ears or either ear more than one inch from the tip end thereof, or who shall have or keep in the person's possession sheep or cattle, which the person claims to own, marked contrary to this subsection unless they were bought in market or of a stranger;

t. Abandon a domesticated animal;

u. For amusement or gain, cause, allow, or permit the fighting or baiting of a living animal or creature;

v. Own, possess, keep, train, promote, purchase, or knowingly sell a living animal or creature for the purpose of fighting or baiting that animal or creature;

w. Gamble on the outcome of a fight involving a living animal or creature;

x. Knowingly sell or barter or offer for sale or barter, at wholesale or retail, the fur or hair of a domestic dog or cat or any product made in whole or in part from the fur or hair of a domestic dog or cat, unless such fur or hair for sale or barter is from a commercial grooming establishment or a veterinary office or clinic or is for use for scientific research;

y. Knowingly sell or barter or offer for sale or barter, at wholesale or retail, for human consumption, the flesh of a domestic dog or cat or any product made in whole or in part from the flesh of a domestic dog or cat;

z. Surgically debark or silence a dog in violation of section 1 or 2 of P.L. 2002, c. 102 (C.4:19-38 or C.4:19-39);

aa. Use a live pigeon, fowl or other bird for the purpose of a target, or to be shot at either for amusement or as a test of skill in marksmanship, except that this subsection and subsections bb. and cc. shall not apply to the shooting of game;

bb. Shoot at a bird used as described in subsection aa. of this section, or is a party to such shooting; or

cc. Lease a building, room, field or premises, or knowingly permit the use thereof for the purposes of subsection aa. or bb. of this section --

Shall forfeit and pay a sum according to the following schedule, to be sued for and recovered, with costs, in a civil action by any person in the name of the New Jersey Society for the Prevention of Cruelty to Animals:

For a violation of subsection e., f., g., u., v., w., or z. of this section or of paragraph (3) of subsection a. of this section, or for a second or subsequent violation of paragraph (2) of subsection a. of this section, a sum of up to $5,000;

For a violation of subsection l. of this section or for a first violation of paragraph (2) of subsection a. of this section, a sum of up to $3,000;

For a violation of subsection x. or y. of this section, a sum of up to $1,000 for each domestic dog or cat fur or fur or hair product or domestic dog or cat carcass or meat product;

For a violation of subsection t. of this section, a sum of not less than $500 nor more than $1,000, but if the violation occurs on or near a highway, a mandatory sum of $1,000;

For a violation of subsection c., d., h., j., k., aa., bb., or cc. of this section or of paragraph (1) of subsection a. of this section, a sum of up to $1,000; and

For a violation of subsection i., m., n., o., p., q., r., or s. of this section, a sum of up to $500.

Amended 2003, c. 232, s. 3.

4:22-26.1. Confiscation, forfeiture of animal 1. An officer or agent of the New Jersey Society for the Prevention of Cruelty to Animals, or a certified animal control officer, may petition a court of competent jurisdiction to have any animal confiscated and forfeited that is owned or possessed by a person at the time the person is found to be guilty of violating R.S. 4:22-17, R.S. 4:22-18, R.S. 4:22-19, R.S. 4:22-20 or R.S. 4:22-23. Upon a finding that the continued possession by that person poses a threat to the animal's welfare, the court may, in addition to any other penalty that may be imposed for a violation of R.S. 4:22-17, R.S. 4:22-18, R.S. 4:22-19, R.S. 4:22-20 or R.S. 4:22-23, adjudge an animal forfeited for such disposition as the court deems appropriate.

4:22-28 Civil, criminal actions separate.

4:22-28. The indictment of a person under the provisions of this article, or the holding of a person to bail to await the action of a grand jury or court, shall not in any way relieve that person from liability to be sued for the appropriate penalties under R.S. 4:22-26.

4:22-29 Jurisdiction for action for penalty.

4:22-29. The action for the penalty prescribed in R.S. 4:22-26 shall be brought:

a. In the Superior Court; or

b. In a municipal court of the municipality wherein the defendant resides or where the offense was committed.

Amended 2003, c. 232, s. 5.

4:22-32 Enforcement and collection of penalties; warrant.

4:22-32. Penalties for violations of R.S. 4:22-26 shall be enforced and collected in a summary manner under the "Penalty Enforcement Law of 1999," P.L. 1999, c. 274 (C. 2A:58-10 et seq.). A warrant may issue when the defendant is temporarily within the jurisdiction of the court, but not residing therein; or when the defendant is likely to evade judgment by removal therefrom; or when the defendant's name or residence is unknown.

4:22-48. Forfeiture, sale of seized animals 4:22-48. The person seizing animals, creatures, implements or appliances as authorized in section 4:22-47 of this Title, shall, within 24 hours thereafter, apply to a court of competent jurisdiction to have the same forfeited and sold.

If, upon the hearing of the application, it is found and adjudged that at the time of the seizure the animals, creatures, implements or appliances were engaged or used in violation of section 4:22-47 or paragraphs "e," "f," "g," "u," "v," or "w" of section 4:22-26 of this Title, or were owned, possessed or kept with the intent that they should be so engaged or used, they shall be adjudged forfeited, and the court shall order the same sold in such manner as it shall deem proper, and after deducting the costs and expenses, shall dispose of the proceeds as provided in section 4:22-55 of this Title.

A bird or animal found or adjudged to be of no use or value may be liberated or disposed of as directed by the court.

The costs of sheltering, caring for, treating, and if necessary, destroying an animal or creature, including veterinary expenses therefor, until the animal or creature is adjudged forfeited and sold, liberated, or disposed of pursuant to this section shall be borne by the owner of the animal or creature.

A creature or property which is adjudged not forfeited shall be returned to the owner, and the person making the seizure shall pay all costs and expenses thereof.

4:22-48.1. Owner to bear expenses a. A person authorized to take possession of a living animal or creature pursuant to R.S. 4:22-47 may provide such shelter, care, and treatment therefor, including veterinary care and treatment, that is reasonably necessary, the costs of which shall be borne by the owner of the seized animal or creature.

b. Notwithstanding the provisions of R.S. 4:22-48 to the contrary, a person seizing a living animal or creature pursuant to R.S. 4:22-47 may destroy it before it is adjudged forfeited if the animal or creature is thought to be beyond reasonable hope of recovery, the cost of which destruction shall be borne by the owner of the seized animal or creature. A person destroying an animal or creature pursuant to the authority of this subsection shall not be liable therefor to the owner of the animal or creature.

4:22-48.2 Owner of confiscated animal responsible for certain costs 1. The costs of sheltering, caring for, or treating any animal that has been confiscated from a person arrested pursuant to the provisions of R.S. 4:22-47 by an agent of the New Jersey Society for the Prevention of Cruelty to Animals, or any other person authorized to make an arrest pursuant to article 2 of chapter 22 of Title 4 of the Revised Statutes, until the animal is adjudged forfeited or until the animal is returned to the owner, shall be borne by the owner of the animal.

CONCLUSION

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

Consequences of a Criminal Guilty Plea

1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s)

2. Do you understand that if you plead guilty:

a. You will have a criminal record

b. You may go to Jail or Prison.

c. You will have to pay Fines and Court Costs.

3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail.

4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing.

5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution.

6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.

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

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

9. You could be put on Probation.

10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your 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;

NJSA 2C:13-2 Criminal Restraint

NJSA 2C:13-2 Criminal Restraint

Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey. The following is the law in New Jersey:

Criminal restraint 2C:13-2. A person commits a crime of the third degree if he knowingly:

a. Restrains another unlawfully in circumstances exposing the other to risk of serious bodily injury; or

b. Holds another in a condition of involuntary servitude.

The creation by the actor of circumstances resulting in a belief by another that he must remain in a particular location shall for purposes of this section be deemed to be a holding in a condition of involuntary servitude.

In any prosecution under subsection b., it is an affirmative defense that the person held was a child less than 18 years old and the actor was a relative or legal guardian of such child and his sole purpose was to assume control of such child.

L.1978, c. 95, s. 2C:13-2, eff. Sept. 1, 1979.

2C:13-3. False imprisonment A person commits a disorderly persons offense if he knowingly restrains another unlawfully so as to interfere substantially with his liberty. In any prosecution under this section, it is an affirmative defense that the person restrained was a child less than 18 years old and that the actor was a relative or legal guardian of such child and that his sole purpose was to assume control of such child.

L.1978, c. 95, s. 2C:13-3, eff. Sept. 1, 1979. Amended by L.1979, c. 178, s. 24, eff. Sept. 1, 1979.

2C:13-4 Interference with custody.

2C:13-4. Interference with custody. a. Custody of children. A person, including a parent, guardian or other lawful custodian, is guilty of interference with custody if he:

(1)Takes or detains a minor child with the purpose of concealing the minor child and thereby depriving the child's other parent of custody or parenting time with the minor child; or

(2)After being served with process or having actual knowledge of an action affecting marriage or custody but prior to the issuance of a temporary or final order determining custody and parenting time rights to a minor child, takes, detains, entices or conceals the child within or outside the State for the purpose of depriving the child's other parent of custody or parenting time, or to evade the jurisdiction of the courts of this State;

(3)After being served with process or having actual knowledge of an action affecting the protective services needs of a child pursuant to Title 9 of the Revised Statutes in an action affecting custody, but prior to the issuance of a temporary or final order determining custody rights of a minor child, takes, detains, entices or conceals the child within or outside the State for the purpose of evading the jurisdiction of the courts of this State; or

(4)After the issuance of a temporary or final order specifying custody, joint custody rights or parenting time, takes, detains, entices or conceals a minor child from the other parent in violation of the custody or parenting time order.

Interference with custody is a crime of the second degree if the child is taken, detained, enticed or concealed: (i) outside the United States or (ii) for more than 24 hours Otherwise, interference with custody is a crime of the third degree but the presumption of non-imprisonment set forth in subsection e. of N.J.S. 2C:44-1 for a first offense of a crime of the third degree shall not apply.

b. Custody of committed persons. A person is guilty of a crime of the fourth degree if he knowingly takes or entices any committed person away from lawful custody when he is not privileged to do so. "Committed person" means, in addition to anyone committed under judicial warrant, any orphan, neglected or delinquent child, mentally defective or insane person, or other dependent or incompetent person entrusted to another's custody by or through a recognized social agency or otherwise by authority of law.

c. It is an affirmative defense to a prosecution under subsection a. of this section, which must be proved by clear and convincing evidence, that:

(1)The actor reasonably believed that the action was necessary to preserve the child from imminent danger to his welfare. However, no defense shall be available pursuant to this subsection if the actor does not, as soon as reasonably practicable but in no event more than 24 hours after taking a child under his protection, give notice of the child's location to the police department of the municipality where the child resided, the office of the county prosecutor in the county where the child resided, or the Division of Youth and Family Services in the Department of Human Services;

(2)The actor reasonably believed that the taking or detaining of the minor child was consented to by the other parent, or by an authorized State agency; or

(3)The child, being at the time of the taking or concealment not less than 14 years old, was taken away at his own volition and without purpose to commit a criminal offense with or against the child.

d. It is an affirmative defense to a prosecution under subsection a. of this section that a parent having the right of custody reasonably believed he was fleeing from imminent physical danger from the other parent, provided that the parent having custody, as soon as reasonably practicable:

(1)Gives notice of the child's location to the police department of the municipality where the child resided, the office of the county prosecutor in the county where the child resided, or the Division of Youth and Family Services in the Department of Human Services.

Consequences of a Criminal Guilty Plea

1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s)

2. Do you understand that if you plead guilty:

a. You will have a criminal record

b. You may go to Jail or Prison.

c. You will have to pay Fines and Court Costs.

3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail.

4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing.

5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution.

6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.

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

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

9. You could be put on Probation.

10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your 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;

NJSA 2C:17-3 Criminal Mischief

NJSA 2C:17-3 Criminal Mischief

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

Criminal Mischief 2C:17-3. a. Offense defined. A person is guilty of criminal mischief if he:

(1)Purposely or knowingly damages tangible property of another or damages tangible property of another recklessly or negligently in the employment of fire, explosives or other dangerous means listed in subsection a. of N.J.S. 2C:17-2; or

(2)Purposely, knowingly or recklessly tampers with tangible property of another so as to endanger person or property.

b. Grading. (1) Criminal mischief is a crime of the third degree if the actor purposely or knowingly causes pecuniary loss of $2,000.00 or more, or a substantial interruption or impairment of public communication, transportation, supply of water, gas or power, or other public service.

(2)Criminal mischief is a crime of the fourth degree if the actor causes pecuniary loss in excess of $500.00. It is a disorderly persons offense if the actor causes pecuniary loss of $500.00 or less.

(3)Criminal mischief is a crime of the third degree if the actor damages, defaces, eradicates, alters, receives, releases or causes the loss of any research property used by the research facility, or otherwise causes physical disruption to the functioning of the research facility. The term "physical disruption" does not include any lawful activity that results from public, governmental, or research facility employee reaction to the disclosure of information about the research facility.

(4)Criminal mischief is a crime of the fourth degree if the actor damages, removes or impairs the operation of any device, including, but not limited to, a sign, signal, light or other equipment, which serves to regulate or ensure the safety of air traffic at any airport, landing field, landing strip, heliport, helistop or any other aviation facility; however, if the damage, removal or impediment of the device recklessly causes bodily injury or damage to property, the actor is guilty of a crime of the third degree, or if it recklessly causes a death, the actor is guilty of a crime of the second degree.

(5)Criminal mischief is a crime of the fourth degree if the actor interferes or tampers with any airport, landing field, landing strip, heliport, helistop or any other aviation facility; however if the interference or tampering with the airport, landing field, landing strip, heliport, helistop or other aviation facility recklessly causes bodily injury or damage to property, the actor is guilty of a crime of the third degree, or if it recklessly causes a death, the actor is guilty of a crime of the second degree.

(6)Criminal mischief is a crime of the third degree if the actor tampers with a grave, crypt, mausoleum or other site where human remains are stored or interred, with the purpose to desecrate, destroy or steal such human remains or any part thereof.

c. A person convicted of an offense of criminal mischief that involves an act of graffiti may, in addition to any other penalty imposed by the court, be required to pay to the owner of the damaged property monetary restitution in the amount of the pecuniary damage caused by the act of graffiti and to perform community service, which shall include removing the graffiti from the property, if appropriate. If community service is ordered, it shall be for either not less than 20 days or not less than the number of days necessary to remove the graffiti from the property.

d. As used in this section:

(1)"Act of graffiti" means the drawing, painting or making of any mark or inscription on public or private real or personal property without the permission of the owner.

(2)"Spray paint" means any paint or pigmented substance that is in an aerosol or similar spray container.

Amended 1979, c.178, s.30; 1981, c.290, s.17; 1991, c.336, s.1, 1995, c.20, s.2; 1995, c.251, s.1; 1998, c.54, s.1; 1999, c.95, s.1.

Consequences of a Criminal Guilty Plea

1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s)

2. Do you understand that if you plead guilty:

a. You will have a criminal record

b. You may go to Jail or Prison.

c. You will have to pay Fines and Court Costs.

3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail.

4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing.

5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution.

6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.

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

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

9. You could be put on Probation.

10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your 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;

Criminal Court System

Criminal Court System

The following contains some pertinent information that might be of help to you as you become involved in the criminal justice system as a victim or witness.

Apprehension and Arrest of the Accused

There are three basic routes a case can take in order to be brought to court:

  1. Arrest of the accused at the scene of the crime;
  2. Arrest based on a warrant issued by the court in response to a sworn complaint;
  3. Arrest based on indictment by a Grand Jury as the result of its investigation.

In all three instances, the evidence available must show that there is "probable cause" to believe that a crime was committed and that the person to be charged took part in committing the crime.

What is a complaint?

A complaint is a statement of facts about an alleged crime which, when filed in court formally charges a person. Facts about a crime are submitted to the County Prosecutor's Office by a local law enforcement agency. Upon review, if the evidence is deemed sufficient for prosecution, a complaint is filed in the court.

This is the initial stage in the prosecution of a criminal matter. If there is not enough information at this time, no complaint is filed.

What is a Warrant of Arrest?

A warrant of arrest is an order signed by a judge, authorizing the police to arrest a person believed to have committed a serious crime.

Case Review and Filing of Charges by the Prosecutor

Following the arrest of the accused by the Police, the case is presented to the prosecutor. The prosecutor, as the people's representative in our system of criminal justice, has the sole responsibility for determining whether or not charges will be presented to the Grand Jury. The initial processing of the case by the prosecutor is often referred to as "screening". At this stage the case is discussed with police, evidence is reviewed and witnesses are interviewed.

The prosecutor then decides whether to do one or more of the following:

  1. Charge the accused with the same charge or charges made by the police or used in issuing the arrest warrant.
  2. Increase a given charge to a more serious charge, reduce the charge, or add new charges.

The accused is often charged with more than one criminal offense so the filing of charges with the court can be complex legal procedure. The prosecutor must consider all applicable laws, as well as the decisions of the State and Federal Courts.

If the prosecutor determines there is not sufficient evidence or there is no legal basis for charging the accused with a crime, the case is closed and the accused released.

What Happens to the Accused?

The person accused of the crime is now called the defendant. The defendant will make his/her first appearance before a judge soon after the arrest. The appearance is for the purpose of reviewing the amount set for bail, furnishing the defendant with a copy of the complaint, confirming legal counsel, and setting a date for hearing.

What is the Purpose of Bail?

Bail is set by the court, not by the prosecutor. It is used to assure a defendant's appearance in court. The primary factor considered by the court is whether the defendant is likely to appear for trial. Within that context the court will also take into consideration the defendant's background and the seriousness of the offense charged.

Why Would a Case Get Dismissed?

There are a number of reasons why a criminal case may be dismissed or dropped by the prosecutor or the court before trial. For example, the prosecution may decide probable cause has not been established or the defendant may make full restitution or compensation for property loss. The case may also have to be dismissed because of some technical failure of the evidence, or because the defendant cannot be found or is considered incompetent to stand trial. None of the reasons means that the witness are unimportant or unnecessary, or that their willingness to testify is not appreciated. The presence and willingness of witnesses to testify may be the deciding factor in determining what will be done in the case, particularly in getting the accused to plead guilty.

What If Someone Threatens a Witness To Drop the Charges?

Such a person is obstructing justice and may be committing a crime. Call the law enforcement officer in charge of the case. Police can ask the judge to issue a new warrant, or to revoke the defendant's bail.

What If The Defense Attorney Contacts a Witness About The Case?

You may be asked by the defense attorney to talk to him/her about the case. The witness may refuse or can talk. It is the decision of a witness.

Pleas Of Guilty

The defendant in the case may decide to plead guilty. The plea may only come at the last moment before trial, often because the defendant's attorney is hoping that a witness will not show up, or that the case will be dropped for other reasons.

What Happens In A Trial?

In a trial, the prosecutor presents the case for the State, attempting to prove beyond a reasonable doubt that the defendant did commit the crime as charged. The defendant may present his or her side through the use of an attorney.

What Do the Witnesses Do At The Trial?

As a witness for the State, they have an important part in the trial. They may be questioned by the assistant prosecutor about who they are and what they know about the case. The defendant's attorney may then cross-examine them or question them about their knowledge of the case. They may feel during the questioning that their personal motives are doubted, but the process of cross-examination is not meant as a personal attack upon them. It is to ensure that all sides of the case are told and to establish the truth. Witnesses need NOT be present during the entire trial and will be called only when needed.

GLOSSARY

ARRAIGNMENT- Usually the following actions occur at this court event: The defendant is officially notified of the charges against him/her; the defendant is asked whether he/she pleads innocent or guilty, whether there will be trial demand and whether by jury or a trial by judge, if that is an option; and the terms of the defendant's release pending trial is set.

BAIL- Release on bond. The defendant may be released if he/she has put money or a percentage of a sum of money required by the court, formally charges a person.

COMPLAINT- A statement of facts about an alleged crime which, when filed in court, formally charges a person.

CONTEMPT OF COURT- This is an offense that can occur in one of two ways: (1) disrespect or unacceptable behavior in the presence of the court which can be punished immediately by the judge; or (2) outside the presence of the court the failure to abide by an order of the court in which a hearing will be held and unless the defendant can show cause why he/she should not be held in contempt, he/she will be sentenced.

CONTINUANCE- A postponement of a case for trial or hearing to a later date which usually can be granted only by the court.

CRIMINAL CONDUCT- The New Jersey Code of Criminal Justice, effective September 1, 1979 grades criminal conduct into first, second, third or fourth degree offenses, all requiring an indictment by the Grand Jury and entitling the defendant to a trial by jury. These offenses were previously referred to in New Jersey as misdemeanors and high misdemeanors or as misdemeanors and felonies in other jurisdictions.

DEFENDANT- A person formally accused of a crime.

DISMISSAL- The dropping of a case by a judge sometimes at the request of the prosecutor.

DISORDERLY PERSON OFFENSE- A minor violation of the law for which a person may be jailed for no more than six months, does not require a Grand Jury indictment and is ordinarily tried in the municipal court without a jury. This class of offense is New Jersey's equivalent of what are commonly referred to as "misdemeanors" in other jurisdictions.

GRAND JURY- A body of 23 citizens which hears evidence presented by the prosecutor to determine whether there is enough evidence to justify an indictment.

INDICTMENT- A formal criminal charge made by a Grand Jury after considering evidence presented by the prosecutor. Also called a True Bill.

NO BILL- A determination by the Grand Jury that the evidence presented by the prosecution is not sufficient to justify an indictment.

OBSTRUCTION OF JUSTICE- The use of force or threat of force to influence or intimidate a juror or witness. Under N.J.'s new criminal code obstruction of justice will also be referred to as "hindering apprehension or prosecution" and carries a severe penalty.

PAROLE- The early release under conditions of supervision of a person who has been convicted of a crime, sentenced to prison and has served some of that sentence.

PERJURY- Deliberate lying under oath. Perjury is a crime of the third degree punishable by a severe penalty.

PETIT OR PETTY JURY- A jury that hears the evidence presented by both prosecution and defense at a trial, comes to a decision concerning the facts and presents a verdict of guilty or not guilty.

PERSONAL RECOGNIZANCE- The method by which an arrested person is released on his/her word that he/she will return at the designated time for further court appearance.

PLEA- When the defendant is asked by the judge whether he/she wishes to admit guilt or to deny it and go to trial on the charges. The answer is the plea which may be either guilty or not guilty.

PLEA BARGAINING- A necessary aspect of the criminal justice process which promotes the speedy disposition of cases without the necessity of trial. Usually, the defendant will plead guilty to SOME of the charges with the prosecutor often recommending a certain sentence and/or the dismissal of other charges. The goal of the prosecutor in plea bargaining is to try to achieve approximately the same result as would have occurred if the defendant had been convicted after trial.

PROBATION- The release under "good behavior" of a person convicted of a crime as an alternative to imprisonment.

SUBPOENA AD TESTIFICANDUM- A written official summons to appear in court to give testimony under possible penalty of law for failure to appear.

SUBPOENA DUCES TECUM- subpoena that directs the witness to bring to court certain named documents or other evidence.

TRUE BILL- A formal criminal charge made by a Grand Jury after considering evidence presented by the prosecutor. Also called an indictment.

Consequences of a Criminal Guilty Plea

1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s)

2. Do you understand that if you plead guilty:

a. You will have a criminal record

b. You may go to Jail or Prison.

c. You will have to pay Fines and Court Costs.

3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail.

4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing.

5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution.

6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.

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

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

9. You could be put on Probation.

10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your 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;

NJSA 2C:5-1 Criminal Attempt

NJSA 2C:5-1 Criminal Attempt

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

2C:5-1. Criminal attempt a. Definition of attempt. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he:

(1) Purposely engages in conduct which would constitute the crime if the attendant circumstances were as a reasonable person would believe them to be;

(2) When causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing such result without further conduct on his part; or

(3) Purposely does or omits to do anything which, under the circumstances as a reasonable person would believe them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.

b. Conduct which may be held substantial step under subsection a. (3). Conduct shall not be held to constitute a substantial step under subsection a. (3) of this section unless it is strongly corroborative of the actor's criminal purpose.

c. Conduct designed to aid another in commission of a crime. A person who engages in conduct designed to aid another to commit a crime which would establish his complicity under section 2C:2-6 if the crime were committed by such other person, is guilty of an attempt to commit the crime, although the crime is not committed or attempted by such other person.

d. Renunciation of criminal purpose. When the actor's conduct would otherwise constitute an attempt under subsection a. (2) or (3) of this section, it is an affirmative defense which he must prove by a preponderance of the evidence that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose. The establishment of such defense does not, however, affect the liability of an accomplice who did not join in such abandonment or prevention.

Within the meaning of this chapter, renunciation of criminal purpose is not voluntary if it is motivated, in whole or in part, by circumstances, not present or apparent at the inception of the actor's course of conduct, which increase the probability of detection or apprehension or which make more difficult the accomplishment of the criminal purpose. Renunciation is not complete if it is motivated by a decision to postpone the criminal conduct until a more advantageous time or to transfer the criminal effort to another but similar objective or victim. Renunciation is also not complete if mere abandonment is insufficient to accomplish avoidance of the offense in which case the defendant must have taken further and affirmative steps that prevented the commission thereof.

L.1978, c. 95, s. 2C:5-1, eff. Sept. 1, 1979.

Consequences of a Criminal Guilty Plea

1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s)

2. Do you understand that if you plead guilty:

a. You will have a criminal record

b. You may go to Jail or Prison.

c. You will have to pay Fines and Court Costs.

3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail.

4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing.

5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution.

6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.

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

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

9. You could be put on Probation.

10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your 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;

Criminal Arrest Defense

Criminal Arrest Defense

CRIMINAL & MUNICIPAL COURT DEFENSE Thank you for contacting Kenneth Vercammen & Associates, PC for representation in a Criminal or Municipal Court matter.

Representation/ What We will do for you. We will review and research necessary statutes and caselaw, contact the prosecutor, prepare defenses and determine mitigating factors. We agree to provide conscientious, competent and diligent services on the charges you provided us at the initial consultation. At all times we will seek to achieve solutions which are just and reasonable for you. 1. Telephone consultation with client; 2. Office consultation with client; 3. Offer sound legal advice to client, plus access to our legal info website njlaws.com 4. Preparation of letter of representation to Court; 5. Preparation of letter of representation to Prosecutor; 6. Preparation of statement to provide legal services; 7. Copies of all correspondence to Court and Prosecutor to client; 8. Opening of file and client may have free client case folder, Municipal Court brochure, DMV points brochure, and Website brochure; 9. Review of necessary statutes and case law; 10. Follow up with Prosecutor for discovery if suspension or jail is likely; 11. Prepare defense and mitigating factors; 12. Miscellaneous correspondence, preparation and drafting of pleadings and legal documents in contested serious cases; 13. Review documents supplied by client and court; 14. Travel to Court; 15. Negotiations with the Prosecutor and Representation in Municipal Court. 16. Preparation of End of Case Letter and client questionnaire. 17. Free Brochures provided on other legal topics such as Worker's Comp, Wills, Personal Injury 18. Free subscription to monthly e-mail newsletter. Provide your email address. 19. Follow up telephone advice [If you call, provide the specific questions with the message]. 20. Invitation to client seminars and Community events via email. 21. Hold and maintain file for seven years in storage as free client service. 22. Free Magnet, Pen, T- shirt, soda/ beer mug, foam soda can holder and estate planning book. Please ask Ken V or staff upon retaining the office. The legal work includes research, correspondence, preparation and drafting of pleadings or other legal documents, conferences in person and by telephone with you and with others, dictating and reviewing letters, negotiations, and any other related work or service to properly represent you in this matter. The Law Firm will provide legal representation through an attorney who is licensed to practice law in New Jersey.

2. Your Responsibility- Please read carefully and follow instructions to help us help you

-After you have retained [paid] your attorney, call the court, plead not guilty and give the court the name of your attorney. In traffic matters, we highly recommend you contact DMV, now Motor Vehicle Commission, and obtain a driver's license abstract. 888-486-3339 or 609-292-6500. This will help you when we go to court. You must fully cooperate with the Law Firm and provide all information relevant to the issues involved in this matter. You must fill out the Interview Sheet accurately. If you do not provide accurate information to the court and our law office, you may expose yourself to a higher DMV surcharge assessment. You must also provide details on what you told the police.

-You should call the Court or Law Office 24 hours before all hearings and court appearances to confirm the case has not been adjourned.

3. Going to Court- You must bring all your original papers and entire file of all documents and letters you have received from our office, the Court, insurance companies and the DMV/ MVC connected to your case whenever you come to the law office, to court, or other appearances where both you and your attorney will be present. When you arrive, please check in. Hearing times are often delayed. If by chance the attorney in my office handling the hearing is not at the hearing room when you arrive, please do not panic. We will soon arrive to handle the case. We often travel from another court. Please remain in the courtroom/hearing room until we arrive, if possible. Usually we will go to speak directly with the Prosecutor or Court Clerk prior to going into the courtroom. In municipal court/traffic cases, we recommend our clients not speak with the Prosecutor but rather wait for your attorney to arrive. If you will have to pay court costs or a fine, bring a checkbook or cash. Most towns and state agencies still do not accept credit cards. Do not leave the court and go home until instructed by Mr. Vercammen or a member of our staff. 4. You must notify the Law Office and the court immediately if your address or phone numbers change. 5. Under the NJ Rules of Professional Conduct and Court Rules, we cannot send a letter of representation to the court until the Retainer is paid in full. All fees and requirements under this written retainer agreement and any other written documents must be complied with. You must also pay all bills as required by this Agreement. If you do not comply with these requirements, the Law Firm will not represent you. Failure to comply with all requirements shall permit the law office to withdraw its offer of representation. We always charge a fee of between $50 - $100 for bad checks.

6 Other Legal Services. We provide representation only on the charges/tickets/offenses you provided to us at the initial consultation. The Law Firm does not guarantee Kenneth Vercammen will be the trial attorney. You and the Law Firm may make additional agreements to provide for legal services not covered by the Agreement. Without such agreements, the Law Firm is not required to do any additional work or any of the following: (a) Provide any legal services after appearance at the trial court; (b) File any Motions or Briefs not set forth on page 1 (c) Appeal any decisions of the trial court or make additional appearances after appearing in Court; (d) provide other legal services or advice not listed on page 1; or (e) Represent you in any other court or Tribunal

Contempt of Court in New Jersey

Contempt of Court in New Jersey

Contempt of Court in New Jersey

The judge must follow the following Rules and Statutes before fining someone for contempt of court:

Rule 1:10-1. Summary Contempt in Presence of Court

A judge conducting a judicial proceeding may adjudicate contempt summarily without an order to show cause if:

(a) the conduct has obstructed, or if continued would obstruct, the proceeding;

(b) the conduct occurred in the actual presence of the judge, and was actually seen or heard by the judge;

(c) the character of the conduct or its continuation after an appropriate warning unmistakably demonstrates its willfulness;

(d) immediate adjudication is necessary to permit the proceeding to continue in an orderly and proper manner; and

(e) the judge has afforded the alleged contemnor an immediate opportunity to respond.

The order of contempt shall recite the facts and contain a certification by the judge that he or she saw or heard the conduct constituting the contempt and that the contemnor was willfully contumacious. Punishment may be determined forthwith or deferred. Execution of sentence shall be stayed for five days following imposition and, if an appeal is taken, during the pendency of the appeal, provided, however, that the judge may require bail if reasonably necessary to assure the contemnor's appearance.

Rule 1:10-2. Summary Contempt Proceedings on Order to Show Cause or Order for Arrest

(a) Institution of Proceedings. Every summary proceeding to punish for contempt other than proceedings under R. 1:10-1 shall be on notice and instituted only by the court upon an order for arrest or an order to show cause specifying the acts or omissions alleged to have been contumacious. The proceedings shall be captioned "In the Matter of ______ Charged with Contempt of Court."

(b) Release Pending Hearings. A person charged with contempt under R. 1:10-2 shall be released on his or her own recognizance pending the hearing unless the judge determines that bail is reasonably necessary to assure appearance. The amount and sufficiency of bail shall be reviewable by a single judge of the Appellate Division.

(c) Prosecution and Trial. A proceeding under R. 1:10-2 may be prosecuted on behalf of the court only by the Attorney General, the County Prosecutor of the county or, where the court for good cause designates an attorney, then by the attorney so designated. The matter shall not be heard by the judge who instituted the prosecution if the appearance of objectivity requires trial by another judge. Unless there is a right to a trial by jury, the court in its discretion may try the matter without a jury. If there is an adjudication of contempt, the provisions of R. 1:10-1 as to stay of execution of sentence shall apply.

Rule 1:10-3. Relief to Litigant

Notwithstanding that an act or omission may also constitute a contempt of court, a litigant in any action may seek relief by application in the action. A judge shall not be disqualified because he or she signed the order sought to be enforced. If an order entered on such an application provides for commitment, it shall specify the terms of release provided, however, that no order for commitment shall be entered to enforce a judgment or order exclusively for the payment of money, except for orders and judgments based on a claim for equitable relief including orders and judgments of the Family Part and except if a judgment creditor demonstrates to the court that the judgment debtor has assets that have been secreted or otherwise placed beyond the reach of execution. The court in its discretion may make an allowance for counsel fees to be paid by any party to the action to a party accorded relief under this rule. In family actions, the court may also grant additional remedies as provided by R. 5:3-7. An application by a litigant may be tried with a proceeding under R. 1:10-2(a) only with the consent of all parties and subject to the provisions of R. 1:10-2(c).

The Supreme Court also issue a directive to Judges regarding the use of Rule 1:10-1 (Contempt in Presence of Court) Directive #8-99 In 1994, the Supreme Court amended Rule 1:10-1 to detail the basis for and procedures governing the use of the summary contempt power. The Rule, as amended, provides as follows: A judge conducting a judicial proceeding may adjudicate contempt summarily without an order to show cause if: (a) the conduct has obstructed, or if continued would obstruct the proceeding; (b) the conduct occurred in the actual presence of the judge, and was actually seen or heard by the judge; (c) the character of the conduct or its continuation after an appropriate warning unmistakably demonstrates its willfulness; (d) immediate adjudication is necessary to permit the proceeding to continue in an orderly and proper manner; and (e) the judge has afforded the alleged contemnor an immediate opportunity to respond. The order of contempt shall recite the facts and contain a certification by the judge that he or she saw or heard the conduct constituting the contempt and that the contemnor was willfully contumacious. Punishment may be determined forthwith or deferred. Execution of sentence shall be stayed for five days following imposition and, if an appeal is taken, during the pendency of the appeal, provided, however, that the judge may require bail if reasonably necessary to assure the contemnor's appearance. All of the requirements of paragraphs (a) through (e) must be met before a judge uses the summary contempt power. In particular, you will note that the conduct must have obstructed the proceeding and have been Actually seen or heard by the judge. The Rule also provides for a warning and an opportunity for the party to respond, all of which contemplates that the offending party is actually in the presence of the judge when the conduct occurs. The significant changes to Rule 1:10-1 were the result of a report by a special Summary Contempt Subcommittee of the Civil Practice Committee. That Committee's recommendations to the Supreme Court and the Court's adoption of those recommendations make it abundantly clear that it is inappropriate for judges to use the summary contempt power when confronted by offensive comments written in letters, on checks, or on envelopes. If threatening language is used in a written communication, the court should follow the established policy contained in the 1988 Guidelines on:

Threats to Members of the Judiciary, (copy attached) rather than resorting to the use of Rule 1:10-1. (For a discussion of the Supreme Court's concerns that pre-dated the Committee's Report, see Matter of Daniels, 118 N.J. 51, 60 (1990).) Courts and court staff are obliged to process written communications, including negotiable instruments, from litigants who gratuitously include profane and scurrilous comments. This does not mean that such submissions need always go unremarked. In an egregious case, a carefully measured written response may be made. The content of such a response cannot, however, implicate the powers provided under Rule 1:10-1.

CONTEMPT (N.J.S.A. 2C:29-9) The following is the Jury charge on Criminal Contempt: The defendant is charged with committing the crime of contempt. The Statutes of New Jersey describe the crime of "contempt" as follows: A person is guilty of a crime . . . if he purposely or knowingly disobeys a judicial order or hinders, obstructs or impedes the effectuation of a judicial order or the exercise of jurisdiction over any person, thing or controversy by a Court, administrative body or investigative entity. In order for the defendant to be found guilty of contempt, you must find each of the following elements beyond a reasonable doubt: [The Judge will charge any or all of the following alternatives as appropriate.] Alternative 1: (Charge in the case of disobedience of an order.) 1. An Order of the Court had been entered. 2. That the defendant knew of the existence of the Order. 3. That the defendant purposely or knowingly disobeyed the Order. A person has disobeyed a judicial order when that person has, with knowledge of the existence of the order, purposely or knowingly refused or failed to comply with an order as entered by the Court which applies to (him/her). A court order may either be written or oral. In the case at hand the proofs indicate that the order which the defendant has been charged with disobeying was written/oral.

OR Alternative 2: Charge in the case of hindering, obstructing or impeding the effectuation of a judicial order. 1. An order of the Court had been entered. 2. That the defendant knew of the existence of the Order. 3. The defendant purposely or knowingly hindered, obstructed or impeded the fulfillment of the judicial order

KENNETH VERCAMMEN & ASSOCIATES, PC ATTORNEY AT LAW 2053 Woodbridge Ave. Edison, NJ 08817 (Phone) 732-572-0500 (Fax) 732-572-0030

TRIAL AND LITIGATION EXPERIENCE In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He appears in Courts throughout New Jersey several times each week on many personal injury matters, Criminal and Municipal/ traffic Court trials, Probate hearings, and contested administrative law hearings.

Mr. Vercammen served as the Prosecutor for the Township of Cranbury, Middlesex County and was involved in trials on a weekly basis. He also argued all pre-trial motions and post-trial applications on behalf of the State of New Jersey.

He has also served as a Special Acting Prosecutor in Woodbridge, Perth Amboy, Berkeley Heights, Carteret, East Brunswick, Jamesburg, South Brunswick, South River and South Plainfield for conflict cases. Since 1989, he has personally handled hundreds of criminal and motor vehicle matters as a Prosecutor and now as defense counsel and has had substantial success.

Previously, Mr. Vercammen was Public Defender for the Township of Edison and Borough of Metuchen and a Designated Counsel for the Middlesex County Public Defender's Office. He represented indigent individuals facing consequences of magnitude. He was in Court trying cases and making motions in difficult criminal and DWI matters. Every case he personally handled and prepared.

His resume sets forth the numerous bar associations and activities which demonstrate his commitment to the legal profession and providing quality representation to clients.

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 Department as a Probation Officer, and an Executive Assistant to Scranton District Magistrate, Thomas Hart, in Scranton, PA.

Consequences of a Criminal Guilty Plea

1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s)

2. Do you understand that if you plead guilty:

a. You will have a criminal record

b. You may go to Jail or Prison.

c. You will have to pay Fines and Court Costs.

3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail.

4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing.

5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution.

6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.

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

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

9. You could be put on Probation.

10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your 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;

Conspiracy and Assault

Conspiracy and Assault

Brief to Dismiss Indictment Charge of Conspiracy and Assault The following is a draft of a Brief to Dismiss Indictment Charge of Conspiracy and Assault. Attorneys should revise this to pertain to the facts of their cases.

Conspiracy and Assault

POINT I

The grand jury was presented with no evidence of a conspiracy.

It is a fundamental principle of constitutional law that no person shall be required to stand trial for a criminal offense absent proper presentment and indictment by a grand jury. N.J. CONST. art. I and U.S. CONST. amend V. The grand jury has historically acted as the citizens' shield from patently frivolous prosecutions. Stirone vs. United States, 361 U.S. 212, 80 S. CT. 270, 4 L.Ed.2d 252 (1960). It has been recognized that this salutary purpose is frustrated when a defendant is compelled to bear the expense and humiliation of a public trial based upon an improperly brought indictment. See, e.g. State vs. Donovan 129 N.J.L. 478 (Sup. Ct. 1943). The primary function of the grand jury is to hear evidence against a person accused of crimes and to make a determination, based on the evidence presented, as to whether or not the person so charged shall be required to stand trial on such charges. Rosetty vs. Hamilton Tp. Com., 82 N.J. Super. 340,348 (Law Div. 1964), aff'd o.b. 96 N.J. Super. 66 (App. Div. 1967). New Jersey courts may exercise its supervisory power to remedy perceived injustices in grand jury proceedings and dismiss indictments where the grand jury has acted on the basis of insufficient or incompetent evidence. State v. Hogan, 144 N.J 216, 227 (1996) (citing State vs. Murphy, 110 N.J. 20, 33 (1988) State vs. Del Fino, 100 N.J. 154 (1985); see, e.g. State vs. Chandler, 98 N.J. super 241 (Law Div. 1967). Although the dismissal of an indictment is an extraordinary remedy which a court should ordinarily not impose except on the clearest and plainest grounds, State vs. Ferrante, 111 N.J. Super. 299 (App. Div. 1970); State vs. Penta, 127 N.J. Super. 201 (Law Div. 1974), the right of an accused to move for dismissal on the ground of lack of evidence before the grand jury has long been recognized. See, e.g. State vs. Dayton, 23 N.J. L. (Sup. Ct. 1850); State vs. Brown, 188 N.J. Super. 656 (Law Div. 1983). A defendant with substantial grounds for having an indictment dismissed should not be compelled to go to trial to prove the insufficiency. State vs. Graziani, 60 N.J. Super. 1,22 (App. Div. 1959), aff'd o.b. 31 N.J. 538 (1960), cert. den. 363 U.S. 830 S. Ct. 1001,4 L.Ed.2d 15214 (1960). In order for a State's prima facie case to the grand jury to appear sufficient on its face, the State must present some evidence as to each element of the charged offenses. State vs. Schenklewski, 301 N.J. Super. 115, 137 (App. Div.), cert. den. 151 N.J. 77 (1977) and State vs. Bennett, 194 N.J. Super 231, 234 (App. Div. 1984). See also, State vs. Scherzer, 302 N.J. Super. 363, 428 (App. Div.), cert. den. 151 N.J. 466 (1997).

2C:5-2 defines conspiracy as follows:

POINT II

The State has an obligation to see that the Grand Jury is properly instructed as to the law and here there was no instruction as to the elements of conspiracy. Regarding the obligation of a prosecutor to charge a Grand Jury as to the applicable law, it was held in State vs. Hogan, 336 N.J.S. 319, 343 (App. Div. 2001) cert. denied 167 N.J. 635 (2001) that "the rule... is only when the facts known to the prosecutor clearly indicate or clearly establish the appropriateness of an instruction that duty of the prosecutor arises". In describing the duties of a prosecutor before a Grand Jury, Judge Arnold, citing State vs. Laws 262 N.J.S. 55 (App. Div. 1993) and State vs. Ball 218 N.J.S. 72 (App. Div. 1993) wrote "The prosecutor should state the elements of each crime, although a mere reading of the statute would appear to suffice". Arnold, Criminal Practice and Procedure 10.27.

Here the prosecutor asked the Grand Jury to consider a charge of conspiracy but gave no legal guidance as to any of its elements.

POINT III

The prosecute failed to advise the Grand Jury of the definitions of bodily injury, significant bodily injury or serious bodily injury and asked the Grand Jury solely to consider Aggravated Assault and Conspiracy to Commit Aggravated Assault. Simple Assault should be charged as a lesser included offense of Aggravated Assault whenever there is a rational basis to do so. State vs. Farrele 250 N.J.S. 386 (App. Div. 1991). Although Farrele dealt with petit jury instructions, the rational of Hogan, supra applies. Since Ms. Sheetz said she suffered only slight bruising, the prosecutor should have given a complete charge as to Aggravated Assault and its lesser included offense, Simple Assault.

POINT IV

The evidence before the Grand Jury does not support a charge of Aggravated Assault and therefore cannot support a charge of Conspiracy to Commit Aggravated Assault.

POINT V

Prejudicial hearsay evidence of alleged other misconduct as to Defendant Joshua Lowles was introduced before the Grand Jury and no curative or limiting instruction was provided by the prosecutor.

As held in State vs. Hogan, supra, and State vs. Hart, 139 N.J.S. 565 (App. Div. 1976), a prosecutor must never attempt to influence a Grand Jury to return an indictment. The gratuitous introduction of a hearsay declaration as to other alleged joint misconduct by ----- "An indictment may not be dismissed because of non-constitutional errors in presenting the case to the grand jury unless such errors prejudiced the defendant. The inquiry regarding prejudice must focus on whether the errors had an effect on the grand jury's decision to influence the decision, or there is grave doubt that the decision to indict was free from such substantial influence, the errors cannot be deemed to be harmless and the indictment must be dismissed."

Arnold, Criminal Practice and Procedure (2004-2005) 10.48

It is suggested above that there was insufficient evidence presented to this Grand Jury to support the Aggravated Assault, let along a conspiracy to commit Aggravated Assault by others not involved in the assault. At a minimum there has to be grave doubt, to use Judge Arnold's phrase, that the conspiracy charge was indicted free from the prejudicial impact of the "other crime's" evidence.

CONCLUSION

For the reason set forth above, the Indictment against _____ should be dismissed.

Conspiracy

Conspiracy

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

2C:5-2. Conspiracy Conspiracy. a. Definition of conspiracy. A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he:

(1) Agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or

(2) Agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

b. Scope of conspiratorial relationship. If a person guilty of conspiracy, as defined by subsection a. of this section, knows that a person with whom he conspires to commit a crime has conspired with another person or persons to commit the same crime, he is guilty of conspiring with such other person or persons, whether or not he knows their identity, to commit such crime.

c. Conspiracy with multiple objectives. If a person conspires to commit a number of crimes, he is guilty of only one conspiracy so long as such multiple crimes are the object of the same agreement or continuous conspiratorial relationship. It shall not be a defense to a charge under this section that one or more of the objectives of the conspiracy was not criminal; provided that one or more of its objectives or the means of promoting or facilitating an objective of the conspiracy is criminal.

d. Overt act. No person may be convicted of conspiracy to commit a crime other than a crime of the first or second degree or distribution or possession with intent to distribute a controlled dangerous substance or controlled substance analog as defined in chapter 35 of this title, unless an overt act in pursuance of such conspiracy is proved to have been done by him or by a person with whom he conspired.

e. Renunciation of purpose. It is an affirmative defense which the actor must prove by a preponderance of the evidence that he, after conspiring to commit a crime, informed the authority of the existence of the conspiracy and his participation therein, and thwarted or caused to be thwarted the commission of any offense in furtherance of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of criminal purpose as defined in 2C:5-1d.; provided, however, that an attempt as defined in 2C:5-1 shall not be considered an offense for purposes of renunciation under this subsection.

f. Duration of conspiracy. For the purpose of section 2C:1-6d.:

(1) Conspiracy is a continuing course of conduct which terminates when the crime or crimes which are its object are committed or the agreement that they be committed is abandoned by the defendant and by those with whom he conspired; and

(2) Such abandonment is presumed with respect to a crime other than one of the first or second degree if neither the defendant nor anyone with whom he conspired does any overt act in pursuance of the conspiracy during the applicable period of limitation; and

(3) If an individual abandons the agreement, the conspiracy is terminated as to him only if and when he advises those with whom he conspired of his abandonment or he informs the law enforcement authorities of the existence of the conspiracy and of his participation therein.

g. Leader of organized crime. A person is a leader of organized crime if he purposefully conspires with others as an organizer, supervisor or manager, to commit a continuing series of crimes which constitute a pattern of racketeering activity under the provisions of N.J.S. 2C:41-1, provided, however, that notwithstanding 2C:1-8a. (2), a conviction of leader of organized crime shall not merge with the conviction of any other crime which constitutes racketeering activity under 2C:41-1.

L. 1978, c. 95; amended by L. 1979, c. 178, s. 17; 1981, c. 167, s. 3; 1981, c. 290, s. 10; 1981, c. 511, s. 1; 1987, c. 106, s. 4.

If someone is charged with CONSPIRACY (N.J.S.A. 2C:5-2), the Judge will read the following instructions and law to the jury:

Under the __________ count of the indictment the defendant(s) is (are) charged with the crime of conspiracy to commit _____________. N.J.S.A. 2C:5-2 provides as follows:

A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he/she:

(SELECT APPROPRIATE SECTION)

(1) Agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or

(2) Agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

A conspiracy to commit the crime of ________________is a crime in itself separate and distinct from the crime of _______________. In other words, a defendant may be found guilty of the crime of conspiracy regardless of whether that defendant is guilty or not guilty of the crime of _____________________. In order for you to find a defendant guilty of the crime of conspiracy, the state must prove beyond a reasonable doubt the following elements:

(1) That the defendant agreed with another person or persons that they or one or more of them would engage in conduct which constitutes a crime or an attempt or solicitation to commit such crime;

OR

That the defendant agreed to aid another person or persons in the planning or commission of a crime or of an attempt or solicitation to commit such crime.

(2) That the defendant's purpose was to promote or facilitate the commission of the crime of (Identify substantive offense).

A person acts purposely with respect to the nature of (his/her) conduct or a result thereof, if it is (his/her) conscious object to engage in conduct of that nature or cause such a result. A person acts purposely with respect to attendant circumstances if (he/she) is aware of the existence of such circumstances or (he/she) believes or hopes that they exist.

(CHARGE THE FOLLOWING FOR CRIMES OF THE THIRD AND FOURTH DEGREE - EXCEPT FOR CRIMES ALLEGING DISTRIBUTION OR POSSESSION WITH INTENT TO DISTRIBUTE CDS OR CDS ANALOG)1

(3) That the defendant or a person with whom he/she conspired did an overt act in pursuance of the conspiracy. An overt act is any act in pursuance of the conspiracy.2

In order to find a defendant guilty of the crime of conspiracy, the State does not have to prove that (he/she) actually committed the crime of (Identify substantive offense). However, to decide whether the State has proven the crime of conspiracy you must understand what constitutes the crime of

(IF NOT PREVIOUSLY STATED GIVE MODEL CHARGE

FOR THE UNDERLYING OFFENSE)

A conspiracy may be proven by direct or circumstantial evidence. It is not essential that there be direct contact among all of the conspirators or that they enter the agreement at the same time. If the defendant is aware that any person (he/she) conspired with also conspired with others to commit the same crime, the defendant is guilty of conspiring with the others. He/she need not be aware of their identity. Mere association, acquaintance, or family relationship with an alleged conspirator is not enough to establish a defendant's guilt of conspiracy. Nor is mere awareness of the conspiracy. Nor would it be sufficient for the State to prove only that the defendant met with others, or that they discussed names and interests in common. However, any of these factors, if present, may be taken into consideration along with all other relevant evidence in your deliberations.

You have to decide whether the defendant's purpose was that he/she or a person with whom he/she was conspiring would commit the crime of _________________. For him/her to be found guilty of conspiracy, the State has to prove beyond a reasonable doubt that when he/she agreed it was his/her conscious object or purpose to promote or make it easier to commit the crime(s) or (Identify substantive offense). The nature of the purpose with which the defendant acted is a question of fact for you the jury to decide. Purpose is a condition of the mind which cannot be seen and can only be determined by inferences from conduct, words or acts. It is not necessary for the State to produce a witness or witnesses who could testify that the defendant stated, for example, that he/she acted with a specific purpose. It is within your power to find that proof of purpose has been furnished beyond a reasonable doubt by inferences which may arise from the nature of the acts and the surrounding circumstances. It also makes no difference what the person or persons with whom the defendant actually conspired had in mind, so long as the defendant believed that he/she was furthering the commission of the crime of ____________________________.

(CHARGE THE FOLLOWING ONLY FOR THOSE CRIMES FOR WHICH IT IS NECESSARY TO PROVE OVERT ACTS, NAMELY ALL THIRD AND FOURTH DEGREE CRIMES EXCEPT THOSE ALLEGING DISTRIBUTION OR POSSESSION WITH INTENT TO DISTRIBUTE CDS OR CDS ANALOG)

I have already explained that to find the defendant guilty of conspiracy you have to be convinced beyond a reasonable doubt that he/she agreed with somebody in the manner and with the purpose I described. In addition, for this type of conspiracy, one of the conspirators must have done at least one overt act in furtherance of the conspiracy, that is, any act directed toward the objective of committing the crime of (Identify substantive offense).3 The State is not required to prove an overt act by every conspirator. The State is only obligated to prove one overt act by any conspirator.

WHERE APPLICABLE, SET FORTH THE OVERT ACTS IN EVIDENCE.

In order to convict you have to be satisfied beyond a reasonable doubt that the State has proven an overt act by a conspirator in furtherance of the conspiracy.4

In summary, the State must prove the following elements:

(1) That the defendant agreed with another person or persons that they or one or more of them would engage in conduct which constitutes a crime or an attempt or solicitation to commit such crime;

OR

That the defendant agreed to aid another person or persons in the planning or commission of a crime or of an attempt or solicitation to commit a crime.

(2) That defendant's purpose was to promote or facilitate the commission of the crime of ___________________________.

(CHARGE THIRD ELEMENT BELOW - ONLY FOR CRIMES OF THE THIRD AND FOURTH DEGREE -- EXCEPT FOR CRIMES ALLEGING DISTRIBUTION OR POSSESSION WITH INTENT TO DISTRIBUTE CDS OR CDS ANALOG)

(3) That defendant or a person with whom he/she conspired did an overt act in pursuance of the conspiracy.

If, after consideration of all the evidence you are convinced beyond a reasonable doubt that the State has proven all of these elements, then you must find the defendant guilty of the crime of conspiracy. On the other hand, if you find that the State has failed to prove to your satisfaction beyond a reasonable doubt any one or more of these elements, then you must find the defendant not guilty of the crime of conspiracy.

[CHARGE THE FOLLOWING PARAGRAPH WHEN APPROPRIATE]

Each offense and each defendant in this indictment should be considered by you separately. The fact that you may find a particular defendant guilty or not guilty of a particular crime should not control your verdict as to any other offense charged against that defendant, and it should not control your verdict as to the charges against any other defendant.

1 See State v. Carbone, 10 N.J. 329 (1952).

2 Under 2C:2-1(b) an omission may under certain circumstances constitute an act.

3 See footnote 2.

4 Where appropriate charge Conspiracy-Renunciation (N.J.S.A. 2C:5-2e) - See Model Charge.