Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey. BAIL SCHEDULE 1
STATUTES WHICH REQUIRE BAIL TO BE SET
BY A SUPERIOR COURT JUDGE, PURSUANT
TO RULE 3:26-2 [Note- An additional new bail law will take affect June 2, 2007
Statute Charge Bail Range
1. 2C:11-3(a) Murder $250,000 to $750,000
No 10%
Purposely or knowingly causes the
death of another;
first degree - minimum 30 years before
parole and up to life in prison.
2. 2C:11-3(3) Felony Murder $250,000 to $750,000
No 10%
Death is caused to a person, other
than a co-participant, during one
of the crimes listed in the statute;
first degree - minimum 30 years before
parole and up to life in prison.
3. 2C:13-1(a) Kidnapping First Degree- $200,000 to
$400,000
Unlawful confinement or removal of No 10%
another for various criminal purposes
as set forth in statute; second degree if Second Degree-$100,000 to
victim is released unharmed and in a safe $200,000
place prior to apprehension; otherwise first No 10%
degree; requires life with 25 years parole
ineligibility if child under 16 is sexually
assaulted or delivered to another for
pecuniary gain.
4. 2C:11-4(a) Aggravated Manslaughter $200,000 to $500,000
No 10%
Actor recklessly causes death under
circumstances manifesting extreme
indifference to the value of human life,
or actor causes death while eluding a police
officer; first degree
5. 2C:11-11-4(b) Manslaughter $100,000 to $200,000
No 10%
Actor recklessly causes death of another
or purposely or knowingly causes death
while in the heat of passion resulting from
a reasonable provocation; second degree
6. 2C:14-2(a)(1) to (7) Aggravated Sexual Assault $150,000 to $300,000
No 10%
Actor commits sexual penetration with
victim under 13, or victim age 13-15 and
supervisory or loco parentis relationship;
or commits during other crimes listed in
statute; or uses weapon; or uses force and
victim suffers severe personal injury, or victim is
physically helpless or mentally defective; or two or
more persons uses force on victim; first degree
7. 2C:14-2(b)(1) to 4 Sexual Assault $50,000 to $200,000
No 10%
Actor commits sexual contact on victim
less than 13 and actor is 4 or more years older;
or sexual penetration with force; or sexual penetration
where actor is a relative as defined in statute or has
supervision over victim as defined in statute; or victim
is age 13-15 and actor is at least 4 years older; second
degree
8. 2C:14-3a Aggravated Criminal Sexual $25,000 to $100,000
Contact 10% permissible
Actor commits sexual contact with victim
age 13 to 15 and is a relative as defined in statute
or has supervisory power as defined; or is committed
during other listed crimes; or actor is armed or threatens
use of weapon; or actor uses force and victim suffers
severe personal injury; or victim is physically helpless
or mentally defective or mentally incapacitated; third
degree
9. 2A:160(1) to (25) Uniform Criminal Extradition
Extradition Proceeding Act
Court may withhold bail or grant bail
to fugitive charged in another state; if
the person is charged with a crime
punishable by death or life
imprisonment, no bail shall be granted.
10. 2C:29-9(b) Fourth Degree-$1,000 to
Contempt of Domestic Violence Restraining Order $2,500
Actor purposely or knowingly violates any provision 10% permissible
of a Domestic Violence restraining order; fourth degree
if conduct constitutes a crime or disorderly persons offense; Disorderly Persons-$500 to
otherwise it is a disorderly persons offense. 4 $2,500
10% permissible
2C:25-31(a) provides that prior
to the setting of bail, the law
enforcement officer shall
conduct a search of the
Domestic Violence Registry.
4
The Domestic Violence Procedures Manual permits Municipal Court Judges to set bail if the contempt charge is a
disorderly persons offense and the Assignment Judge of the vicinage has issued an order permitting this authority.
BAIL SCHEDULE 2
STATUTES WHERE BAIL MAY BE SET BY
A SUPERIOR COURT JUDGE OR A MUNICIPAL COURT JUDGE OR,
IN THE MUNICIPAL COURT JUDGE'S ABSENCE, THE
MUNICIPAL COURT ADMINISTRATOR OR DEPUTY
COURT ADMINISTRATOR, PURSUANT TO RULE 3:26-2
BAIL SCHEDULE 2
Statute Bail Range
1. 2C:5-5 Burglar's tools Fourth Degree-$1,000 to
$2,500
10% permissible
Actor possesses tools commonly used
to commit theft or burglary with purpose Disorderly Persons-$500 to
to so employ; fourth degree if actor manufactures $1,000
tools; otherwise a disorderly persons offense. 10% permissible
2. 2C:7-2 Registration of Sex Offenders (Megan's Law)
Actor previously convicted of listed sex offense who $1,000 to $2,500
fails to register; fourth degree. 10% permissible
3. 2C:11-5 Death by Auto or Vessel First Degree-$150,00 to
Actor causes death while recklessly $350,000
driving a vehicle or vessel; first degree 10% permissible
if within 1000 feet of a school or driving
through school crossing; otherwise, second Second Degree-$50,000 to
degree. $150,000
10% permissible
4. 2C:11-3.1 Knowingly Leaving the Scene $15,000 to $35,000
of a Motor Vehicle Accident Resulting in Death 10% permissible
A motor vehicle operator knows he is involved in
an accident under circumstances which violated
N.J.S.A. 39:4-129 ("Action in case of accident")
and the accident results in the death
of another person; third degree.
5. 2C:12-1(b)(1) Aggravated Assault
Attempts to cause or causes serious bodily injury; $35,000 to $100,000
second degree. 10% permissible
6. 2C:12-1(b)(2) Aggravated Assault
Attempts to cause or causes bodily injury with a $20,000 to $50,000
deadly weapon; third degree. 10% permissible
7. 2C:12-1(b)(3) Aggravated Assault $1,000 to $2,500
Recklessly causes bodily injury with a deadly weapon; 10% permissible
fourth degree.
8. 2C:12-1(b)(4) Aggravated Assault $1,000 to $2,500
Pointing a firearm at or in the direction of another; 10% permissible
fourth degree.
9. 2C:12-1(b)(5) Aggravated Assault Third Degree-$5,000 to
Simple assault upon police officer or upon other $15,000
categories of people as listed in the statute; 10% permissible
(fireman, first aid person, school teacher, bus driver
DYFS worker, judge, motorbus operator); third degree if Fourth Degree-$1,000 to
victim suffers bodily injury; otherwise, fourth degree. $2,500
10% permissible
10. 2C:12-1(b)(6) Aggravated Assault
Actor causes injury to another person during the course Second Degree-$20,000 to
of an eluding or unlawful taking of a means of conveyance; $50,000
third degree if victim suffers bodily injury; second degree if 10% permissible
victim suffers significant bodily injury.
Third Degree-$5,000 to
$15,000
10% permissible
11. 2C:12-1(b)(7) Aggravated Assault
Attempts to cause or causes significant bodily injury $20,000 to $50,000
to another; third degree. 10% permissible
12. 2C:12-1(b)(9) Aggravated Assault $50,000 to $75,000
Pointing a firearm at a police officer; third degree. 10% permissible
13. 2C:12-1.1 Leaving Scene of a Motor Vehicle $1,000 to $2,500
Accident Resulting in Serious Bodily Injury; 10% permissible
A motor vehicle operator knows he is involved in an accident
and knowingly leaves accident under circumstances which
violate N.J.S.A. 39: 4-129 ("Action in case of accident")
and the accident results in serious bodily injury to another person;
fourth degree.
14. 2C:12-3(a)(b) Terroristic Threats
Threatens crime of violence or threat to kill; third degree; Second Degree-$25,000 to
if threat of crime of violence occurs during declared period $50,000
of national, state or county emergency, second degree. 10% permissible
Third Degree-$10,000 to
$20,000
10% permissible
15. 2C:12-10 (a-l) Stalking Third Degree-$20,000 to
Course of conduct toward a specific person causing fear of $50,000
injury to victim or victim's family; fourth degree; if stalking 10% permissible
is committed in violation of prior court order prohibiting same,
or is a second or subsequent offense or is committed while on Fourth Degree-$1,000 to
probation or parole for an indictable offense; third degree. $2,500
10% permissible
16. 2C:13-2(a) Criminal Restraint
Unlawfully restraining another with exposure to serious bodily $10,000 to $25,000
or holds another in involuntary servitude; third degree. 10% permissible
17. 2C:13-6 Luring, Enticing Child, Attempts: $50,000 to $100,000
Attempts to or lures a child, or a person that the actor 10% permissible
reasonably believes to be a child, into motor vehicle,
structure or isolated place or to meet at any other place
with purpose to commit an offense; second degree.
"Child" is defined as a person less than 18 years old.
18. 2C:14-3(a) Criminal Sexual Contact $1,000 to $2,500
Intentional touching of intimate parts of victim for actor's 10% permissible
sexual gratification through force; or if victim is on probation
or parole and actor is the supervising officer; or if the victim is
age 16 or 17 and actor is related by blood or affinity to third degree;
or has supervisory or disciplinary power over victim; or is foster
parent or in loco parentis; or victim is age 13 to 15 and actor
is at least four years older; fourth degree.
19. 2C:14-4 Lewdness Fourth Degree-$1,000 to
Exposure of intimate parts for sexual gratification of actor if $2,500
conduct is likely to be observed by a child under age 13 and actor is 10% permissible
more than 4 years older; or is likely to be observed by mentally
defective person who is unable to understand the sexual nature of the Disorderly Persons-$500 to
conduct; fourth degree; any other flagrantly rude or offensive conduct $1,000
likely to be observed by a non-consenting person; disorderly persons 10% permissible
offense. 20. 2C:15-1 Robbery First Degree- $100,000 to
Force or threats during theft or attempted theft; second degree; if $250,000
act is committed while armed, or threatening use of weapon or there No 10%
is attempt to inflict or does inflict serious bodily injury; first degree.
Second Degree- $50,000 to
$100,000
No 10%
21. 2C:15-2(a) Carjacking
During course of theft of motor vehicle, actor uses force $100,000 to $250,000
or threatens victim; first degree. No 10%
22. 2C:17-1(a) Aggravated Arson
Starts fire with purpose to put another in danger, or to destroy $35,000 to $75,000
building, or to collect insurance and recklessly places any person No 10%
in danger of death or injury, or to destroy forest; second degree.
23. 2C:17-1(b) Arson
Starts fire and recklessly places person or structure in danger $10,000 to $35,000
or to collect insurance; third degree. 10% permissible
24. 2C:17-3(a) Criminal Mischief
Damages or tampers with property of another; third degree if Second Degree- $50,00 to
$2,000 or more; fourth degree if in excess of $500; otherwise $75,000
a disorderly persons offense; or if damages airport or other places 10% permissible
or devices listed-fourth degree; if bodily injury is caused, third
degree; if death is caused, second degree; or if grave or crypt is Third Degree-$5,000 to
tampered with, third degree. $15,000
10% permissible
Fourth Degree-$1,000 to
$2,500
10% permissible
Disorderly Persons-$500 to
$1,000
10% permissible
25. 2C:18-2 Burglary Second Degree-$35,000 to
Enters or surreptitiously remains in a structure or research facility $75,000
with purpose to commit an offense therein; third degree; if actor No 10%
is armed with or displays what appears to be explosives or a deadly
weapon or threatens to inflict or inflicts bodily injury, second degree. Third Degree-$10,000 to
$50,000
10% permissible
26. 2C:18-3 Criminal Trespass Fourth Degree-$1,000 to
Enters or surreptitiously remains in structure or research facility $2,500
or in school or on school property; or if structure is a dwelling 10% permissible
or if committed in school or on school property; fourth degree;
otherwise a disorderly person; enters any place where notice is Disorderly Persons-$500 to
given against trespass; petty disorderly persons; peering into $1,000
dwelling; fourth degree. 10% permissible
27. 2C:20-3 Theft - Second Degree $35,000 to $75,000
Steals property valued at $75,000 or more; or by extortion; or 10% permissible except
takes human remains. if by extortion.
No 10% if by extortion.
28. 2C:20-3 Theft - Third Degree $5,000 to $20,000
Steals property valued at more than $500 but less than $75,000; 10% permissible
or property is a firearm or motor vehicle or boat or domestic
animal; or property is taken from the person of victim.
29. 2C:20-3 Theft - Fourth Degree Fourth Degree-$1,000 to
Steals property valued at least $200 but not more than $500; $2,500
if lesser value, it is a disorderly persons offense. 10% permissible
Disorderly Persons-$500 to
$1,000
10% permissible
30. 2C:20-10 Unlawful Taking of a Means of Conveyance Third Degree-$2,500 to
Takes motor vehicle without consent of owner, fourth degree; $10,000
operates motor vehicle without consent of owner and drives 10% permissible
recklessly, third degree; rides in a motor vehicle knowing it has
been taken without consent of the owner, fourth degree. Fourth Degree-$1,000 to
$2,500
10% permissible
31. 2C:20-11 Shoplifting Second Degree-$35,000 to
Carries away property or conceals property with intent to steal $75,000
or alters tags or removes labels with intent to deprive merchant 10% permissible
of some or all of its value; second or third or fourth degree or
disorderly persons offense depending upon value as delineated in Third Degree-$5,000 to
in section (c). $20,000
10% permissible
Fourth Degree-$1,000 to
$2,500
10% permissible
Disorderly Persons-$500 to
$1,000
10% permissible
32. 2C:21-1 Forgery Third Degree-$5,000 to
With purpose to defraud or injure another, makes or alters $20,000
or utters documents which are forged or fictitious; third or fourth 10% permissible
degree depending upon types of documents as laid out in statute.
Fourth Degree-$1,000 to
$2,500
10% permissible
33. 2C:21-2.1 Sale of Simulated Document Second Degree-$35,000 to
Actor sells, transfers, or possesses with intent to sell a writing $75,000
which falsely purports to be a driver's license or other document 10% permissible
issued by a governmental agency which could be used to verify Third Degree-$5,000 to
a person's identity or age or who makes or possesses devices or $20,000
materials to make such documents, second degree; if actor exhibits 10% permissible
or utters such documents, third degree except that this statute does
not apply if actor purchases alcoholic beverage underage or tobacco Fourth Degree-$1,000 to
underage and there is no other fraud or injury to another; if actor $2,500
possesses such documents, fourth degree. 10% permissible
34. 2C:21-5 Bad Checks Second Degree-$35,000 to
Issues or passes check knowing it would not be honored or if no $75,000
account to draw on; second or third or fourth degree or disorderly 10% permissible
persons offense depending upon amount of check; second degree-
$75,000 or more; third degree-$1,000 but less than $75,000; fourth Third Degree-$5,000 to
degree $200 but less than $1,000; disorderly persons-less than $200. $20,000
10% permissible
Fourth Degree-$1,000 to
$2,500, 10% permissible
Disorderly Persons-$500 to
$1,000
10% permissible
35. 2C:21-6 Credit Cards Third Degree-$5,000 to
Receiving with intent to sell or selling lost or stolen credit cards; $20,000
fourth degree; uses lost or stolen or fictitious credit cards; third 10% permissible
degree.
Fourth Degree-$1,000 to
$2,500
10% permissible
36. 2C:24-4 Endangering Welfare of Children First Degree-$100,000 to
(a). If actor has legal duty to care for child or who has assumed $250,000
responsibility for child and engages in sexual conduct with child No 10%
under 16 or who harms or abuses child, second degree; if actor
has no legal duty or has not assumed responsibility for child, Second Degree-$50,000 to
third degree; $100,000
(b). If actor causes or allows child to engage in prohibited or No 10%
simulated prohibited sexual act for filming or reproduction; first
degree if parent or guardian; if any other person, second degree; Third Degree-$20,000 to
(b)(4) If actor photographs or films child in prohibited sexual acts $50,000
or simulation thereof or reproduces image of a child in a prohibited 10% permissible
sexual act or simulation, second degree;
(b)(5) If actor received with intent to sell or sells films or pictures Fourth Degree-$1,000 to
of children in a prohibited sexual act or simulation thereof, second $2,500
degree; 10% permissible
(b)(6) If actor possesses or knowingly views pictures or film of child
in prohibited sexual act or simulation thereof, including via the
internet, fourth degree.
37. 2C:28-4 False Reports to Law Enforcement Authority $1,000 to 2,500
Actor gives false information to law enforcement officer with 10% permissible
purpose to implicate another; fourth degree.
38. 2C:28-5 Tampering with Witness and Informant Second Degree-$50,000 to
Knowing an official investigation is proceeding or is about to $100,000
be instituted, attempts to induce witness to testify falsely, or 10% permissible
withhold evidence or elude legal subpoenas or absent self
from proceeding or investigation; second degree if actor uses Third Degree-$20,000 to
threats of force; otherwise third degree. $50,000
10% permissible
39. 2C: 29-1 Obstructing Administration of Law or other Fourth Degree-$1,000 to
Governmental Function $2,500
Actor obstructs or impairs or attempts to prevent public servant 10% permissible
from performing official function by force, intimidation or other
unlawful act; fourth degree if actor obstructs investigation or Disorderly Persons-$500 to
prosecution of a crime; otherwise, a disorderly persons offense. $1,000
10% permissible
40. 2C:29-2 Resisting Arrest, Eluding Officers Third Degree-$5,000 to
Actor resists arrest by use of force or threat of force $10,000
or creates substantial risk to safety of officer, third degree; 10% permissible
If actor resists arrest by flight, fourth degree; otherwise, it is a
disorderly persons offense. Fourth Degree-$1,000 to
$2,500
10% permissible
Disorderly Persons-$500 to
$1,000
10% permissible
Eluding- Actor driving motor vehicle fails to stop after signal Second Degree-$25,000 to
from police, third degree; if actor eludes and drives in a manner $50,000
that creates a risk of death or injury, second degree. No 10%
Third Degree-$10,000 to
$20,000
10% permissible
41. 2C:29-3(a)(b) Hindering Apprehension or Prosecution Second Degree-$25,000 to
(a) Actor has purpose to hinder or impair apprehension or $50,000
prosecution of another and assists that person in avoiding 10% permissible
detection or suppression of evidence; second or third or
fourth degree depending upon degree of crime the other person Third Degree-$5,000 to
is charged with or liable to be charged with and whether the actor $10,000
is a parent of the other person. 10% permissible
(b) Actor hinders own apprehension or investigation by
suppressing evidence or intimidating others who could give Fourth Degree-$1,000 to
information or testify against actor; or by giving false information $2,500
to police; third or fourth degree or disorderly persons offense 10% permissible
depending upon degree of crime to which actor is exposed
or charged. Disorderly Persons-$500 to
$1,000
10% permissible
42. 2C: 29-5 Escape Second Degree-$25,000 to
Leaves official detention without permission or absconds from $50,000
parole; second degree if force or threats are used or weapon is No 10%
employed; otherwise third degree.
Third Degree-$10,000 to
$25,000
No 10%
43. 2C:34-1 Prostitution Second Degree-$25,000 to
Sexual activity with another person in exchange for something $50,000
of economic value; promoting prostitution or owning or controlling 10% permissible
a house of prostitution or soliciting another to become a prostitute;
second or third or fourth degree depending upon circumstances, Third Degree-$5,000 to
including whether a child under 18 is involved; disorderly persons $15,000
offense if actor is charged only with engaging in prostitution. 10% permissible
Fourth Degree-$1,000 to
$2,500
10% permissible
Disorderly Persons-$500 to
$1,000
10% permissible
44. 2C:35-3 Leader of a Narcotics Trafficking Network $200,000 to $350,000
Actor conspires with 2 or more persons in a scheme or course No 10%
of conduct to distribute CDS and is an organizer or supervisor
of one of them; first degree.
45. 2C:35-5 Manufacturing, Distributing, Dispensing CDS
Actor manufactures, distributes, dispenses or possesses with intent
to distribute CDS:
Numerous types of CDS are covered by this statute:
First Degree $100,000 to $250,000
Heroin or cocaine, 5 ounces or more. No 10%
LSD or its analog, 10 grams or more.
Methamphetamine or its analog, 5 ounces or more.
Marijuana, 25 pounds or more, or 50 marijuana plants
or more.
Hashish, 5 pounds or more.
Second Degree $75,000 to $150,000
Heroin or Cocaine, 1Ú2 ounce or more but less than 5 ounces No 10%
LSD or its analog, 1Ú2 ounce or more but less than 5 ounces.
Methamphetamine or its analog, 1Ú2 ounce or more but less than 5 ounces.
Marijuana, 5 pounds but less than 25 pounds, or 10 or more marijuana plants
but less than 50 marijuana plants. Hashish, 1 pound or more but less than 5 pounds.
Other substances in Schedule I or II in quantity of one ounce or more.
Third Degree $5,000 to $20,000
Heroin or cocaine, less than 1Ú2 ounce 10% permissible
Methamphetamine, or its analog, less than 1Ú2 ounce
Marijuana, an ounce or more but less than 5 pounds.
Hashish, 5 grams or more but less than 1 pound.
Other substances in Schedule I or II in a quantity of less than 1 ounce.
Other substances, or their analogs, in Schedules I, II, III or IV.
Fourth Degree $1,000 to $2,500
Marijuana in quantity of less than 1 ounce. 10% permissible
Hashish in a quantity of less than 5 grams.
Any substance, or its analog, in Schedule V.
46. 2C:35-6 Employing a Juvenile in a Drug Distribution Scheme $50,000 to $100,000
Actor solicits or employs a person, 17 years or younger, No 10%
in a drug distribution scheme; second degree.
47. 2C:35-7 Distribution, Dispensing or Possessing CDS with $15,000 to $35,000
Intent to Distribute on or within 1000 Feet of School Property or 10% permissible
a School Bus
Actor distributes or possesses with the intent to distribute CDS
on or within 1000 feet of school property or a school bus; third degree.
48. 2C:35-7.1 Distribution, Dispensing or Possessing CDS with Second Degree-$25,000 to
Intent to Distribute within 500 feet of Certain Public Property $50,000
Public property means public park, public housing facility or No 10%
public building; second degree unless CDS is less than 1 ounce
of marijuana; then it is a third degree. Third Degree-$10,000 to
$25,000
10% permissible
49. 2C:35-10 Possession of CDS or Analog Third Degree-$5,000 to
CDS or Analog in Schedules I, II, III, or IV, other than if specifically $10,000
covered in statute, third degree; 10% permissible
CDS or analog in Schedule V, fourth degree
Possession of marijuana over 50 grams, fourth degree; otherwise Fourth Degree $1,000 to
it is a disorderly persons offense. $2,500
10% permissible
Disorderly Persons-$500 to
$1,000
10% permissible
50. 2C:35-13 Obtains CDS by Fraud $5,000 to $10,000
Actor obtains CDS by fraud, forgery or deception; third degree 10% permissible
51. 2C:39-3 Prohibited Weapons and Devices Third Degree-$7,500 to
Destructive devices and sawed off shotgun; third degree; $20,000
defaced firearm, certain knives and other listed weapons, stun guns, 10% permissible
dum-dum bullets, fourth degree.
Fourth Degree-$1,000 to
$2,500
10% permissible
52. 2C:39-4 Possession of Weapons for Unlawful Purposes Second Degree-$50,000 to
Actor possesses weapon with purpose to use unlawfully against a $100,000
person or property ; firearms and destructive devices, second degree; No 10%
other weapons, third degree; imitation firearm, fourth degree.
Third Degree-$10,000 to
$20,000
10% permissible
Fourth Degree-$1,000 to
$2,500
10% permissible
53. 2C:39-5 Unlawful Possession of Weapons Third Degree-$7,500 to
Possession of machine gun, third degree; possession of firearm $20,000
without permit, third degree; possession of rifle and shotgun 10% permissible
without firearm purchase card, third degree; other weapons under
circumstances not manifestly appropriate, fourth degree; assault Fourth Degree-$1,000
weapons, third degree. to $2,500
10% permissible
OTHER DISORDERLY PERSONS OFFENSES AND
PETTY DISORDERLY PERSONS OFFENSES
1. 2C:12-1a(1)(2)(3) Simple Assault $500 to $2,500
Attempts to or purposely or knowingly or recklessly 10% permissible
causes bodily injury to another; or negligently causes bodily
injury to another with a deadly weapon; or attempts by physical Petty Disorderly Persons
menace to put another in fear of imminent serious bodily injury; $100 to $500
disorderly persons offense; if fight or scuffle entered into by mutual 10% permissible
consent, petty disorderly persons offense.
2. 2C:13-3 False Imprisonment $500 to $2,500
Actor knowingly restrains another unlawfully so as to 10% permissible
interfere substantially with his liberty; disorderly persons
offense.
3. 2C:24-7 Endangering the Welfare of an Incompetent
Person $500 to $2,500
Actor knowingly acts in a manner likely to be injurious to 10% permissible
the physical, mental or moral welfare of a person who is unable
to care for himself because of a mental disease or defect; disorderly
persons offense.
4. 2C:33-2 Disorderly Conduct
Actor with purpose to cause public inconvenience, annoyance
or alarm, engages in fighting or threatening or violent behavior
or creates a hazardous or physical dangerous condition with no $100 to $500
legitimate purpose or engages in unreasonably loud or offensive 10% permissible
language in a public place with purpose to offend others or in
reckless disregard of doing so; petty disorderly persons offense.
5. 2C:33-2.1 Wandering, Remaining in or Prowling Public
Places with purpose of obtaining or selling controlled substances. $500 to $2,500
Actor wanders, prowls, or remains in public place for purpose of 10% permissible
unlawfully obtaining or distributing a controlled dangerous substance;
disorderly persons offense.
6. 2C:33-4 Harassment $500 to $1,000
Actor with purpose to harass another, engages in anonymous 10% permissible
or offensive communications or subjects to another to kicking,
shoving or other offensive touching or threatens to do so, or Petty Disorderly Persons
engages in repeated conduct. Petty disorderly persons offense $100 to $500
unless actor is in prison or on parole or probation for indictable
offense. It is then fourth degree. 10% permissible
7. 2C:33-7 Obstructing Highways and Other Public Places
Actor purposely or recklessly obstructs a public passage or, $500 to $1,000
in a gathering, refusal to obey a reasonable official request 10% permissible
to move; petty disorderly persons offense.
8. 2C:33-12 Maintaining a Nuisance
Actor knowingly or recklessly maintains a condition which endangers $100 to $1,000
the safety or health of a considerable number of persons or knowingly 10% permissible
Maintains any premises or place where people gather for the purpose
of engaging in unlawful conduct; disorderly persons offense unless
the premises is place where obscene material is made or sold. It is
then fourth degree.
9. C:33-13-1 Sale of Cigarette to Minors $100 to $500
Actor sells or gives cigarettes or tobacco to any person under 18; 10% permissible
petty disorderly persons offense.
10. 2C:33-15 Possession or Consumption of Alcoholic Beverage $500 to $1,000
by Person under Legal Age 10% permissible
Actor under legal age possesses or consumes alcohol in any school
public conveyance, public place, or place of assembly or motor vehicle;
disorderly persons offense.
11. 2C:33-16 Possession of Alcoholic Beverage on School Property $500 to $1,000
Actor of legal age to purchase alcohol brings or possesses alcohol on 10% permissible
school property without written permission of school board; disorderly
persons offense.
12. 2C:33-17 Offering Alcoholic Beverages to under Age Persons
Actor offers or entices underage person to drink alcohol; disorderly $500 to $1,000
persons offense unless it falls into one of the listed exceptions in 10% permissible
statute. (Exceptions occur when an underage person is given alcohol
either by a parent or guardian who is of legal age to consume alcohol;
or by another person, who is of legal age, in that person's home and
in the presence of and with permission of the parent or guardian who is
of legal age to consume alcohol; or is given alcohol during a religious
ceremony, observance or rite).
SECTION 8
JUDICIAL REVIEW OF DEFENDANTS HELD IN LIEU
OF BAIL FOR INDICTABLE OFFENSES
There is no question that fairness in bail practices involves not only the initial setting of
bail amounts and conditions but also the continuing and careful judicial review of the bail set on
defendants who are unable to make bail. See Rule 3:26-2(c)(d). Such subsequent reviews
normally involve much more information than was available to the judge or judicial officer who
initially set the bail.
When bail is first set, the judge or other judicial officer often has little more than the
basic allegations in the complaint and the name, address, age and prior record of the defendant.
Indeed, at this very early stage, information regarding prior record can often be limited. Many
defendants have used other names, multiple social security numbers and different dates of birth.
Many have been arrested out of state and information on the disposition of those cases can be
incomplete. In some cases, the immigration status of the defendant is not clear. All of these
factors can contribute to a Judge setting a significant initial bail.
During subsequent reviews, which are sometimes in open court and at other times on the
papers, the judge will ordinarily have far more information on the factors cited above as well as a
summary of the proofs in the case. The judge will also have much more information regarding
the defendant's ties to the community, including length of residence, contact with other family
members and the existence of employment.
Our Subcommittee certainly recognizes that such subsequent reviews may, in some cases,
actually persuade the judge to raise the bail if the relevant supplemental information warrants it.
We also understand that, as discussed in State vs. Fann in Section 2 herein, the fact that the
defendant may be unable to post bail does not in and of itself mean that the bail is unfair. In
many cases, however, subsequent information will justify the reduction of bail, particularly if
weeks or months have passed and the case has not yet been presented to the Grand Jury.
As noted earlier herein, pursuant to 2C:25-26(e), bail in domestic violence cases cannot
be reduced without prior notice to the county prosecutor and the victim. Bail shall not be
reduced by a judge other than the judge who originally ordered the bail, unless the reasons for
the amount of the original bail are available to the judge who reduces the bail and are set forth on
the record.
As noted in Section 2, Rule 3:26-2 (c) provides that, unless the original bail has been set
by a Superior Court Judge, a Judge of the Superior Court shall review the bail of a defendant
being detained on the first court day following the arrest. While there is certainly literal
compliance with the rule, counties vary widely as to whether the review is conducted on the
papers or with the defendant in court.
We have also found that there is widespread variance in how often and under what
circumstances the bail is reviewed thereafter. The defendant may, of course, with or without an
attorney, request a bail review and, as noted earlier, Rule 3:26-2(d) requires that a first motion
for bail reduction be conducted within seven days of its filing. There are again, however, many
differences among the counties as to when a Superior Court Judge reviews the bail without a
specific motion being filed.
In some counties, presentation to the Grand Jury may take place several months after
arrest. Some of these defendants have gone through pre-indictment-processing courts (PIP)
where bail has again been reviewed. Others have not since some counties do not have PIP
courts. In some counties, the Criminal Presiding Judge or other designated judge will schedule a
so called "dismissal" list for those cases not yet presented to the Grand Jury within four months
after arrest. During these reviews, the complaint can be dismissed or, in the alternative, the bail
substantially reduced or amended to R.O.R.
After a case is indicted, it is assigned for arraignment to a trial judge. That trial judge
will have the responsibility of managing the case and monitoring the bail status of any defendant
who is still incarcerated. We note, however, that four or five weeks normally elapses between
indictment and arraignment and there will often be no review of that bail during this interim
period. Sometimes the defendant will have been indicted on even more serious charges than
originally filed. In other cases, however, the charges in the indictment will be less serious than
originally filed, thereby often justifying a reduction in bail.
We discussed these topics while reviewing our Subcommittee's initial draft report during
the last several Criminal Presiding Judges meetings. We all agreed that defendants being held in
lieu of bail, both pre-indictment and post-indictment but prior to arraignment, must be afforded
periodic review of their bails.
We do not recommend that each county be required to employ exactly the same
procedures, since, as noted above, there are substantial differences with respect to the use of PIP
courts, dismissal lists, and the length of time between arrest and presentation of a case to the
Grand Jury. Particularly in those counties where PIP courts and/or dismissal lists are not used,
and where there are significant delays between arrest and presentation to the Grand Jury, the
Criminal Presiding Judges must ensure that procedures are in place that provide for periodic
review of these bails. Thereafter, the trial judge must be constantly vigilant as to the progress of
cases involving incarcerated defendants. When substantial delays occur, and particularly if such
delays are not caused by the defendant, serious consideration should be given to the reduction of
bail.
SECTION 9
JUDICIAL REVIEW OF DEFENDANTS HELD IN LIEU OF
BAIL ON NON-INDICTABLE OFFENSES, INCLUDING
POST-ADJUDICATION WARRANTS
When setting and then later reviewing bails for those charged with disorderly persons and
petty disorderly persons offenses, judges and other judicial officers must be mindful of the
maximum custodial penalties that can be imposed on these cases. 2C:43-2(b)(2) limits a
disorderly persons conviction to ninety days in jail if imposed as a condition of probation.
2C:43-8 limits custodial terms when probation is not imposed to six months for a disorderly
persons offense and thirty days for a petty disorderly persons offense.
Under these circumstances, a defendant held for anything more than a few weeks could
be approaching or even exceeding, when considering jail credits accumulated, the maximum
penalty or max-out release date if convicted. This, coupled with our recognition that most
defendants do not receive maximum custodial penalties, underscores the importance of
expeditious bail reviews and court hearing dates.
Our Subcommittee's discussions, with particular input from our Municipal Presiding
Judges, has resulted in our greater awareness that the reasons for holding municipal detainees
include many defendants other than those awaiting trial on disorderly persons or petty disorderly
persons offenses. Some are held in lieu of bail on traffic offenses, normally after failing to
appear at the first court date and often after also failing to respond to a subsequent mailed
"failure to appear" notice which many courts send prior to resorting to a warrant. Rule 7:8-9,
supra. Many defendants, however, have been picked up on post-adjudication warrants for
alleged failure to pay fines, failure to comply with the terms of a conditional discharge, failure to
report to an intoxicated driver resource center, and other charges related to failure to complete
the conditions of the prior disposition. When issuing these bench warrants, Municipal Court
Judges routinely attach bail amounts which the defendant must post prior to being released.
During our discussions, we have learned that many, if not most, Municipal Court Judges
set cash bail at the total amount of the fines which are outstanding if failure to pay these fines
was the basis for the bench warrant. If the bail is posted in full, it is applied to the fines and the
case is closed. In other cases where bail is set for warrants alleging failures other than the
payment of fines, the amount of bail can differ widely.
Many bails set under these various circumstances are at or below the $500 amount which
has been a particular focus and concern for our subcommittee. As noted in Section 1 of this
report, one of the primary goals was to address the issue of indigent defendants who may remain
in jail for many days or even weeks on low bails in the amount of $500 or less.
It is interesting to note that Rule 7 does not specifically address bail per se in the post-
adjudication warrant situation. The legal authority for setting bail in these circumstances appears
to be Rule 7:8-9, which permits the court to issue an arrest warrant if the "defendant in any case
before the court fails to appear." The Subcommittee notes that most post-adjudication municipal
detainees are not on probation and it is the municipal court which is responsible for collecting the
fines. Bail on warrants for outstanding fines is set for three apparent reasons - to collect the
fines, to provide for the release of the defendant prior to the court date if the fines are satisfied,
and, if the fines are not immediately satisfied, to ensure the defendant's appearance at the next
court date when the violation charge will be addressed. Bail on warrants which do not involve
failure to pay fines but allege other violations of conditions of the prior disposition is set to
ensure the defendant's appearance at the next court date when the violation charge will be
addressed. We note that, in some of the larger municipal courts, court sessions are held every day
and the defendant will ordinarily be taken to court within a matter of a day or two. If the Court is
a municipal court without substantial volume and meets only a couple of times per month, the
delay could be two weeks or more.
With respect to the municipal courts being informed that the defendant has been arrested
and detained, our discussions satisfy us that the county jails routinely notify the municipal courts
within a couple of days of the defendant's arrival at the jail. We are also aware that municipal
court administrators or deputy court administrators routinely monitor the County Correctional
Information System (CCIS) on court computers which encompass programs entitled "Municipal
Charge Status by Committing Authority" and "Municipal Charge Status by Inmate Name."
These reports are posted each Monday and further inform the municipal court staff that the
defendant is in jail and a court hearing should be expeditiously scheduled. We note that some
municipal courts have video conferencing equipment, which allows for the appearance of the
defendant while still at the jail.
Our Subcommittee's particular concern in this area is twofold - the amount of bail being
attached to these warrants and the presence or absence of any judicial review between the time of
arrest and detention and the appearance in court.
The Subcommittee fully understands that, if a bench warrant has issued for failure to pay
fines or failure to complete conditions of the prior disposition, and particularly where the
defendant has failed to appear in court after proper notice for a hearing on that violation charge,
then the defendant is not cooperating with the system and may reasonably be designated to be a
risk to not appear again. Under these circumstances, some bail may certainly be appropriate.
We note, however, that the requirement of a bail which reflects the total fines owed or a
substantial bail for a violation of a condition of the prior disposition may well be excessive and
often impossible for indigent or lower income defendants to meet. The result will be continuing
detention until the court date which, as noted earlier, can substantially vary among the
municipalities. We recommend that, when Municipal Court Judges or other judicial officers are
setting bail in these circumstances, careful consideration be given to setting an amount less than
the total amount owed. If the warrant does not allege an outstanding fine, the bail set must be
reasonable given the defendant's personal circumstances. This will give indigent defendants a
better opportunity to make bail and thereafter to pay or otherwise perform the remainder of their
obligations.
As to the issue of judicial review, we are concerned, given the days or weeks that can
elapse before a court date, about the presence or absence of such review either by a Municipal
Court Judge or a Superior Court Judge during this interim period. Our discussions have revealed
widespread variation among the counties.
In some counties, a Superior Court or Municipal Court Judge reviews the bails after the
defendants have been held for a specific period of time, ranging from four to fourteen days. This
occurs in Bergen, Essex, Union, and Hudson. Camden and Monmouth counties utilize the
Municipal Presiding Judge to review the municipal bails on a daily basis. In Camden, the bail
review is in open court and in Monmouth it is on the papers.
The Subcommittee recognizes that some Municipal Presiding Judges are hired for only
one to two days per week, usually serve as a regular Municipal Court Judge and additionally
maintain a private practice. These other responsibilities would make it nearly impossible for
those Presiding Judges to conduct reviews on a daily basis, particularly where volume is high.
Our Subcommittee discussed the need for close and frequent monitoring of the bails of
municipal detainees in those counties where there is not a daily review by the Presiding Judge of
the Municipal Court. This topic was also discussed at recent meetings of the Conference of
Criminal Presiding Judges and the Municipal Presiding Judges Conference.
Based upon all of these discussions, it is our Subcommittee's understanding that the
general consensus is that, provided the goal of frequent and careful review is achieved, it is not
necessary for each county to do it in exactly the same way. The bottom line is that if the
defendant is not taken to the Municipal Court within several days of being taken into custody,
the Municipal Judge should be made aware of that defendant and review the bail. If the
defendant is not released and the defendant has not been taken to the Municipal Court within one
week of arrest, the bail should be reviewed by either the Presiding Judge of the Municipal Courts
or the Criminal Presiding Judge.
Our Subcommittee concludes that such reviews will result in the release of many
municipal detainees who may otherwise remain in custody for additional days or weeks.
SECTION 10
CONCLUSIONS
As we submit this final report of our subcommittee, we note that earlier drafts have been
reviewed by the Conference of Criminal Presiding Judges, the Conference of Family Presiding Judges
and the Conference of Municipal Presiding Judges. We appreciate the input from the members of
these Conferences. Based upon our subcommittee's discussions, as well as the input from these
Conferences, we respectfully recommend the following:
1. That Bail Schedules 1 and 2 be approved as official A.O.C. schedules and supersede any prior
schedules, including Exhibit A, attached.
2. That the Superior Court Judges and Municipal Court Judges be continuously educated and
encouraged to employ summonses where appropriate and R.O.R. and 10% cash bail where
appropriate. Where R.O.R. bails are set, we recommend that no monetary amounts be attached.
3. That, as discussed in Section 8 herein, the Criminal Presiding Judges ensure that procedures
are in place that provide for the periodic review of all defendants held in lieu of bail on indictable
charges which are pending presentation to the Grand Jury or are post-indictment but prior to
arraignment before a trial judge.
4. That, as also discussed in Section 8 herein, trial judges carefully monitor and expeditiously
move to trial all post-indictment defendants who do not wish to resolve their cases by pleas. If
substantial delays occur, particularly if not caused by the defendant, serious consideration should be
given to reducing the bail of an incarcerated defendant.
5. That, as discussed in Section 9 herein, Municipal Judges and other judicial officers, when
issuing a post-adjudication warrant for failure to pay fines, carefully consider the amount of bail set
and not automatically or routinely designate the bail amount at the total amount of the outstanding
fines. Lower bail amounts will give indigent defendants a better opportunity to meet the bail, apply it
Conference of Criminal Presiding Judges
Subcommittee Report
On
Bail Practices
Approved by the Conference of
Criminal Presiding Judges
INDEX
PAGE
SECTION 1 - INTRODUCTION-BAIL PRACTICES
SECTION 2 - SUMMARY OF LAW REGARDING INDICTABLE OFFENSES
SECTION 3 - SUMMARY OF LAW REGARDING NON-INDICTABLE
OFFENSES - DISORDERLY PERSONS AND PETTY DISORDERLY
OFFENSES
SECTION 4 - THE USE OF SUMMONSES AND WARRANTS
SECTION 5 - THE REASONS FOR BAIL SCHEDULES
SECTION 6 - BAIL SCHEDULE 1 - STATUTES WHICH REQUIRE BAIL TO 23-26
BE SET BY A SUPERIOR COURT JUDGE, PURSUANT TO RULE 3:26-2
SECTION 7 - BAIL SCHEDULE 2 - STATUTES WHERE BAIL MAY BE SET 27-41
BY A SUPERIOR COURT JUDGE OR A MUNICIPAL COURT JUDGE OR,
IN THE MUNICIPAL COURT JUDGE'S ABSENCE, THE MUNICIPAL COURT
ADMINISTRATOR OR DEPUTY COURT ADMINISTRATOR,
PURSUANT TO RULE 3:26-2
SECTION 8 - JUDICIAL REVIEW OF DEFENDANTS HELD IN LIEU OF BAIL
FOR INDICTABLE OFFENSES
SECTION 9 - JUDICIAL REVIEW OF DEFENDANTS HELD IN LIEU OF BAIL
FOR NON-INDICTABLE OFFENSES, INCLUDING POST-ADJUDICATION
WARRANTS
SECTION 10 - CONCLUSIONS
EXHIBIT A - BAIL SCHEDULE FOR NON-INDICTABLE OFFENSES ISSUED
BY FORMER AOC DIRECTOR ROBERT D. LIPSCHER, DATED MAY 29, 1985
EXHIBIT B - MEMO OF FORMER A.O.C. DIRECTOR ROBERT D. LIPSCHER,
DATED FEBRUARY 24, 1988, REGARDING MUNICIPAL COURTS ACCEPTING
PERSONAL CHECKS FOR BAIL FOR "NON-SERIOUS" OFFENSES
EXHIBIT C - SUMMARY OF RULES/STATUTES GOVERNING BAIL AND BAIL
SCHEDULES IN CHART FORMAT
1
SECTION 1
INTRODUCTION
BAIL PRACTICES
The 2000-2002 report of the New Jersey Supreme Court Committee on Minority
Concerns addressed many issues with respect to the treatment of and impact upon minority
defendants within the New Jersey criminal justice system. These issues included bail practices,
sentencing outcomes, proper instruction of a jury when it is analyzing a cross-racial
identification, evaluation of the number and exercise of peremptory challenges when selecting a
jury, and the need for Drug Courts.
With respect to the issue of bail practices, the Committee stated the following at page 20:
"The impact of New Jersey bail practices on persons of color has been a long standing
concern of every court committee or task force on minority concerns convened in New Jersey.
Indeed, all reports issued by the predecessor task force and follow-up standing committees have
stressed the need to address the issue, beginning with the inaugural report published by the
Coleman Committee1 in 1984 and including the interim (1989) and final (1992) reports of the
Supreme Court Task Force on Minority Concerns, as well as the first two rules cycle reports
published in 1994-1996 and 1996-1998 of the Supreme Court Committee on Minority
Concerns."
The Committee further noted at page 20, footnote 7, the following:
"In the 1984 Coleman Committee Report, the adverse impact of bail practices on poor
defendants in New Jersey was discussed. The following quote captured the Coleman
Committee's assessment "...ÔBecause many minorities are also poor people...the Judiciary
process of setting bail denies them equal access to pre-trial release with all of its advantages in
helping to prepare one's defense at trial...'Reference: National Minority Advisory Council on
Criminal Justice, The Inequality of Justice; A Report on Crime and the Administration of Justice
in the Minority Community, at p. 260."
The Committee recommended that a comprehensive bail study be conducted by the
Administrative Office of the Courts to determine whether current bail practices are
discriminatory. It was concluded that, since a study of this nature would be extremely costly and
could quite possibly take years, the recommendation could not be implemented. Judge Richard
1
This Committee was chaired by the Hon. James H. Coleman, Jr., Associate Justice of the New Jersey Supreme
Court.
2
J. Williams, Director of the Administrative Office of the Courts, requested that the Criminal
Presiding Judges focus on two areas of concern. The first issue is defendants being held in jail
on low bails of under $500. The second issue is the consistency or inconsistency of bail setting
within a vicinage and among vicinages and whether a bail schedule for indictable crimes is
feasible.
The Chair of the Criminal Presiding Judges Conference, the Hon. Elaine L. Davis, then
directed that a subcommittee on bail practices be formed to address these issues and to thereafter
submit a report to the Conference.
This Subcommittee has been comprised of the following members: Hon. Marilyn C.
Clark, Chair, P.J. Cr., Passaic County; Hon. Edward M. Coleman, P.J. Cr., Hunterdon/Somerset/
Warren Counties; Hon. Linda G. Baxter, P.J. Cr., Camden County; Hon. Marvin E. Schlosser,
P.J. Cr., Burlington County; Hon. Louis J. Balasco, Jr., P.J.M.C., Atlantic/Cape May Counties;
Hon. Roy F. McGeady, P.J.M.C., Bergen County; Hon. James J. Murner, Jr., P.J.M.C. Passaic
County; Hon. Bonnie L. Goldman, P.J.M.C., Burlington County; Hon. Jack McFeeley, P.J.M.C.,
Camden County; Joseph J. Barraco, Esq., Assistant Director, Criminal Practice, Administrative
Office of the Courts; John Wieck, Chief, Criminal Court Services, Administrative Office of the
Courts; and John Podeszwa, Chief, Technical Assistance, Municipal Court Services,
Administrative Office of the Courts.
During the course of our Subcommittee discussions, which commenced in September,
2002, we have concluded that our report should address not only defendants held on low bail and
the feasibility of a bail schedule for indictable offenses but also related issues such as a bail
schedule for non-indictable offenses - disorderly and petty disorderly persons offenses; the use of
warrants, which do require bail, as opposed to summonses which do not; the manner in which
bail may be posted, including the often discretionary decision as to whether a 10% cash
alternative will be permitted; important bail legislation which was enacted in September, 2003;
and the need for frequent and informed judicial review of bails which have resulted in the
continuing detention of defendants prior to trial.
The Subcommittee concluded that it was appropriate to first summarize the court rules,
statutes, and case law that govern the setting of bail in New Jersey. We then proceeded to
address the issues as noted above.
In Section 2, we have summarized the rules of court, statutes, and related case law
regarding the use of summonses and warrants and the setting of bail for those charged with
indictable offenses where jurisdiction for prosecution is in the Superior Court.
In Section 3, we have prepared a similar summary of the law pertaining to those charged
with disorderly and petty disorderly persons offenses where jurisdiction for prosecution is in the
Municipal Court.
In Section 4, we have discussed the use of warrants and summonses.
In Section 5, we have discussed the reasons for bail schedules.
In Section 6, we have listed and summarized the elements of the so-called "high impact"
offenses under Rule 3:26-2. We have recommended bail ranges for these offenses. These are
charges in which only a Superior Court Judge may set bail.
In Section 7, we have made similar recommendations regarding bail ranges for all other
offenses.
In Section 8, we have discussed the need for ongoing judicial review of defendants held
in jail in lieu of bail on indictable offenses.
In Section 9, we have discussed the need for ongoing judicial review of defendants held
in jail in lieu of bail for non-indictable offenses, including post-adjudication warrants.
In Section 10, we have set forth our conclusions and recommendations as to the issues
raised in this report.
4
SECTION 2
SUMMARY OF LAW REGARDING INDICTABLE OFFENSES
Rule 3:2-2. Summons. This Rule provides that a summons shall be made on a
Complaint- Summons (CDR-1) form, a Uniform Traffic Ticket or a Special Form of Complaint
and Summons. The summons shall be signed by the judicial or law enforcement officer issuing
it. It shall be directed to the person named in the complaint and require that person to appear in
court at a stated time and place. It shall inform that person that an arrest warrant will be issued
for failure to appear.
Rule 3:2-3. Arrest Warrant. This Rule provides that an arrest warrant shall be made on a
Complaint-Warrant (CDR-2) form. It directs that the warrant shall contain the defendant's name
or, if that is unknown, any name or description which identifies this defendant with reasonable
certainty. It shall be signed by the judge, clerk or deputy clerk, municipal court administrator, or
deputy municipal court administrator. It shall be directed to any officer authorized to execute it,
and it shall order the defendant to be arrested and brought before the court that issued the
warrant.
Rule 3:3. Summons or Warrant upon Complaint. This Rule delineates the circumstances
under which warrants and summonses are issued, including the factors which must be considered
in determining whether the charging document is a warrant or a summons. Both warrants and
summonses may issue only if there has been a finding, from the complaint or accompanying
affidavit or testimony, of probable cause to believe that a crime has been committed and that the
defendant committed it. Such finding may be made by a judge, clerk, deputy clerk, municipal
court administrator, or deputy municipal court administrator, who then notes the finding on the
complaint. If there is a finding of no probable cause by a judicial officer other than a judge, the
matter shall be reviewed by the judge who will determine whether probable cause exists. If no
probable cause is found by the judge, the complaint will be dismissed.
Following a determination of probable cause, the judge or judicial officer then determines
whether a warrant or summons should be used. The Rule provides that a summons shall issue
unless the defendant is charged with murder, kidnapping, aggravated manslaughter,
manslaughter, robbery, aggravated sexual assault, sexual assault, aggravated criminal sexual
contact, criminal sexual contact, second degree aggravated assault, aggravated arson, arson,
burglary, violations of Chapter 35 2 of Title 2C that constitute first or second degree crimes, or
any crimes involving possession or use of a firearm, or conspiracies or attempts to commit such
crimes; or the defendant has been served with a summons and has failed to appear; or there is
reason to believe that the defendant is a danger to self, other persons or property; or there is an
outstanding warrant for the defendant; or the defendant's identity or address is not known and a
warrant is necessary to subject the defendant to the jurisdiction of the court; or there is reason to
believe that the defendant will not appear in response to a summons.
Where there is a violation of a domestic violence restraining order under 2C:29-9(b),
2C:25-31 provides that, upon a finding of probable cause, the defendant shall be arrested and
taken into custody. Hence, the charge shall be issued on a warrant and not a summons.
Rule 3:26-1. Right to Bail Before Conviction. This Rule provides that all persons except
those charged with crimes punishable by death where the prosecutor presents proof that there is a
likelihood of conviction and reasonable grounds to believe that the death penalty may be
imposed, shall be bailable before conviction on such terms as, in the judgment of the court, will
ensure their presence in court when required. The Rule lays out the factors to be considered in
setting bail which are the seriousness of the crime charged, the apparent likelihood of conviction
and the extent of punishment permitted; the defendant's prior criminal record, if any, and
previous record on bail, if any; the defendant's reputation and mental condition; the length of
defendant's residence in the community; the defendant's family ties and relationships; the
2
Chapter 35 is the "Comprehensive Drug Reform Act of 1986."
defendant's employment status; record of employment and financial condition; the identity of
responsible members of the community who would vouch for defendant's reliability; any other
factor indicating defendant's mode of life, or ties to the community or bearing on the risk of
failure to appear and, particularly, the general policy against unnecessary sureties and detention.
This Rule also provides that the Court may order the release of a person on that person's own
recognizance, commonly known as "R.O.R. or O.R." Bail. The Court may also impose terms or
conditions appropriate to release, including conditions necessary to protect the community.
This Rule also provides that if a person charged with a crime punishable by death is not
indicted within 3 months after commitment, the judge, for good cause shown, may admit the
defendant to bail. It further allows that if an incarcerated defendant's case is not moved for trial
within 6 months after arraignment, a Superior Court Judge, for cause shown, may discharge the
defendant upon the defendant's own recognizance. Finally, the Rule provides that where the
person has been arrested in an extradition proceeding, that person may be admitted to bail except
where that person is charged with a crime punishable by death.
Rule 3:26-2. Authority to Set Bail. This Rule provides that a Superior Court Judge may
set bail for any offense. Only a Superior Court Judge may set bail for persons charged with
murder, kidnapping, aggravated manslaughter, aggravated sexual assault, aggravated criminal
sexual contact, a person arrested in an extradition proceeding or a person arrested under 2C:29-9
for violating a domestic violence restraining order.3 Bail for all other offenses may be set by any
other judge, or in the absence of a judge, by a municipal court administrator or deputy court
administrator. Notably, the rule does not require a Superior Court Judge to set bail on any of the
enunciated offenses when the defendant is charged solely with an attempt to commit that crime
or a conspiracy to commit that crime. Hence, such attempt or conspiracy charges may be set by
The Domestic Violence Procedures Manual permits Municipal Court Judges to set bail if the contempt charge is a
disorderly persons offense and the Assignment Judge of the vicinage has issued an order permitting this authority.
a Municipal Court Judge or, in the absence of the judge, a municipal court administrator or
deputy court administrator.
The Rule further provides that a person who is unable to post bail shall have his bail
reviewed by a Superior Court Judge on the next court business day. It further allows that, except
where a Superior Court Judge has set the bail, a Municipal Court Judge may revise the bail up to
and including the defendant's first appearance in court. If the defendant is charged with non-
indictable offenses only, thereby invoking original continuing jurisdiction in the Municipal
Court, the bail may be reviewed by the Municipal Court Judge at any time during the course of
the proceedings. The Rule further provides that a first motion to reduce bail shall be heard no
later than seven days after it is filed.
Rule 3:26-4 (g). Ten Percent Cash Bail. This Rule provides that "Except in first or
second degree cases as set forth in N.J.S.A. 2A:162-12 and unless the order setting the bail
specifies to the contrary, whenever bail is set pursuant to Rule 3:26-1, bail may be satisfied by
the deposit in court of cash in the amount of ten-percent of the amount of bail fixed and the
defendant's execution of a recognizance for the remaining ninety percent. No surety shall be
ordered unless the court fixing bail so orders."
2A:162-12. Crimes with Bail Restrictions. This statute, amended on September 12,
2003, had previously listed crimes which, when charged in the first or second-degree range,
precluded the Judge from imposing a 10% cash alternative. The amended statute continues the
requirement that bail for these offenses may only be posted by full cash, or a surety bond
executed by an authorized corporation under Chapter 31 of Title 17 of the Revised Statutes, or a
bail bond secured by real property situated in New Jersey with an unencumbered equity equal to
the amount of bail undertaken plus $20,000. The offenses delineated are murder, manslaughter,
kidnapping, sexual assault, robbery, carjacking, arson, causing or risking widespread injury or
damage, burglary, theft by extortion, endangering the welfare of children, resisting arrest,
eluding officer; escape, corrupting or influencing a jury; possession of weapons for unlawful
purposes; and weapon training for illegal purposes. The statute also further defines "Crimes with
bail restrictions" as any first or second degree drug-related crimes under Chapter 35 of Title 2C
of the New Jersey Statutes and any first or second degree racketeering crimes under Chapter 41
of Title 2C.
The section (c) amendment to this statute, effective on September 12, 2003, provides,
when setting bail on any of these offenses, the following:
"....There shall be a presumption in favor of the court designating the posting of full
United States currency cash bail to the exclusion of other forms of bail when a defendant
is charged with an offense as set forth in subsection (a) of the this section and:
(1) Has two other indictable offenses pending at the time of the arrest; or
(2) Has two prior convictions for a first or second degree crime or for a violation of
Section 1 of P.L. 1987, c. 101 (c.2C:35-7) in any combination thereof; or
(3) Has one prior conviction for murder, aggravated manslaughter, aggravated sexual
assault, kidnapping, or bail jumping; or
(4) Was on parole at the time of the arrest, unless the court finds that another form of bail
authorized in subsection (b) of this section will ensure the defendant's presence in
court when required."
The amended statute, in section (e), does continue to give the judge the discretion to
impose an R.O.R. bail "when the court determines that such person is deserving."
2C:6-1. Bail for persons accused of minor offenses. This statute provides that the Court
shall not require a bail in excess of $2,500 for a person charged with a fourth degree crime or
disorderly persons offense or petty disorderly persons offense unless the Court finds that the
person presents a serious threat to the physical safety of potential evidence or of persons
involved in circumstances surrounding the alleged offense; or unless the Court finds that bail of
that nature will not reasonably assure the appearance of the defendant as required. The statute
requires that the judge, for good cause shown, may impose bail in excess of $2,500 but the
reasons must be set forth on the record.
Rule 3:26-3. Bail for Witness. This Rule provides for proceedings to be conducted by a
Superior Court Judge in a matter where either the prosecutor or defense counsel is concerned that
a person with material and relevant information in a pending case may fail to respond to a
subpoena. The Rule allows that, in certain circumstances, bail may be set and other conditions
imposed to ensure the appearance of the witness. Our Committee notes the existence of this
Rule as part of its summary of bail statutes and case law but further concludes that additional
evaluation and discussion is not necessary. We note that material witness proceedings occur
very infrequently and we do not believe that this circumstance is a basis for the Minority
Concerns Committee's request for a review of bail practices.
In State v. Johnson, 61 N.J. 351 (1972), the Supreme Court enumerated the factors that
must be considered in setting bail. Those factors formed the basis of the factors as set forth in
Rule 3:26-1, supra. In noting the important and extremely sensitive issue of a defendant's
indigency, the Johnson court, after outlining those factors, said the following at page 365:
"Although those elements should be considered, trial courts should
not lose constitutional perspective. The amount of bail should not be
excessive - even though the controlling test is not the defendant's
financial capacity. His indigency although requiring consideration,
because inevitably bail discriminates against the poor, cannot of itself
outweigh the nature of the crime. On the other hand an excessive bail
requirement should not be utilized as a means of confining the
accused until trial. The amount of bail required in a given case, where
serious offenses, such as murder, are involved, is not an easy decision.
But in reaching it, the constitutional right to bail and the presumption
of innocence cannot be overlooked."
In State v. Fann, 239 N.J. Super 507 (Law Div. 1990), the Court engaged in an extensive
review of bail practices. The Court noted the near impossibility of having defendant and defense
counsel present when bail is initially set but stressed the need for quick and meaningful review of
the initial bail. The Court said at page 524:
"It is impractical and unfair to defendants to expect or require
counsel to be present for bail purposes immediately after an arrest.
Defendant's interest is in the prompt setting of reasonable bail. It is
also impractical and contrary to the interest of defendants to require
their presence when bail is set initially. Bail arrangements are made
by telephone in many cases. Arresting officers call duty prosecutors
who consult duty judges. Lawyers sometimes initiate calls. Involving
unrepresented defendants in these calls would delay the fixing of bail
and delay is very undesirable. A prompt bail review provides the
appropriate avenue for satisfaction of the constitutional rights to
which defendant is entitled."
The Court then went on to articulate the need for judges to set forth the reasons for the
bail and its associated conditions. The Court continued at page 524:
"The reasons given must address the amount of bail fixed, the
conditions imposed, the use of a warrant instead of a summons and
the disallowance of ten percent bail, if ten percent was denied. The
latter requirement is underlined in State v. Casavina, 163 N.J. Super.
27, 394 A.2d 142 (App.Div.1978), in which the court said that a
court may deny ten percent bail only "for sound reasons bottomed on
sufficient findings specifically articulated by the trial judge." Id. at
31, 394 A.2d 142. Reasons for setting a particular amount of cash
bail are particularly difficult to articulate. Great differences in
monetary amounts of bail set in a given case at successive review
hearings provide the appearance of personal bias on the part of the
different bail judges involved. It is time for insistence upon a
rational approach, achievable only if judges are required to provide
reasons for their actions.
The reasons requirement need not be burdensome. A brief written
statement placed in the file of the case or attached to the bail report
will suffice."
2C:25-26. Restraint of Defendant by Court Orders. This statute sets forth the additional
information which the Court must have when setting bail on any crime or offense involving
alleged acts of domestic violence. An act of domestic violence is defined as one or more acts
which would constitute a violation of any of the statutes listed under 2C:25-19(a) and which
occur between parties who have a relationship as defined under 2C:25-19(d). The listed statutes
are homicide, assault, terroristic threats, kidnapping, criminal restraint, false imprisonment,
sexual assault, criminal sexual contact, lewdness, criminal mischief, burglary, criminal trespass,
harassment and stalking.
2C:25-26(d) provides that the Court must consider the defendant's prior record and the
Court must also conduct a search of the Domestic Violence Central Registry. Section (d) also
requires that bail be set as soon as is feasible, but in all cases within 24 hours of arrest. 2C:25-26(e) provides that once bail is set, it shall not be reduced without prior notice to the county
prosecutor and the victim. It also provides that bail shall not be reduced by a judge other than
the judge who originally ordered bail, unless the reasons for the amount of the original bail are
available to the judge who reduces the bail and are set forth in the record.
2C:25-31. Arrest of Order Violators. This statute provides that when a defendant is
arrested on a charge of contempt of a domestic violence restraining order, the law enforcement
officer shall conduct a search of the Domestic Violence Central Registry. This information must
then be considered by the judge setting the bail.
2C:29-9(b). Contempt. This statute provides that a person is guilty of a fourth degree
crime if he purposely or knowingly violates a domestic violence restraining order by conduct
which could also constitute a crime or disorderly persons offense. In all other cases, any
knowing violation constitutes a disorderly persons offense. As noted supra, pursuant to Rule
3:26-2, a Superior Court Judge must set bail on a charge of contempt of a domestic violence
restraining order unless the Assignment Judge of the vicinage has given Municipal Court Judges
the authority to set bail if the contempt charge is a disorderly persons offense.
2A:162-13. Bail Sufficiency Hearings. This statute was effective on January 9, 2004 and
provides that when a person charged with an offense posts cash bail or secures a bail bond, the
Court may, upon the request of the prosecutor, conduct an inquiry to determine the reliability of
the obligor or person posting cash bail; the value and sufficiency of any security offered; the
relationship of the obligor or person posting cash bail to the defendant and the defendant's
interest in ensuring that bail is not forfeited; and whether the funds used to post the cash bail
were acquired as a result of criminal or unlawful conduct.
This statute further provides that the Court may examine, under oath or otherwise, any
person who possesses relevant information, and may inquire into any matter appropriate to its
determination, including but not limited to factors listed in subsections (a) through (g). These
factors include character, background and reputation of the person or surety posting cash bail or
bond; the relationship of such person to the defendant and the source of the bond money or bail,
including whether any such money constitutes the fruits of criminal or unlawful conduct. In the
case of a surety bond, inquiry is also permitted into the qualifications of the surety and its
executing agent.
2A:162-14. Procedures. This statute was effective on January 9, 2004 and provides that
the procedures to determine the sufficiency of bail, as authorized in 2A:162-13, be governed by
rules adopted by the Supreme Court.
SECTION 3
SUMMARY OF LAW REGARDING NON-INDICTABLE OFFENSES -
DISORDERLY PERSONS AND PETTY DISORDERLY PERSONS OFFENSES
Rule 7:2-1(a)(1). Complaint: General. This Rule provides that the complaint shall be a
written statement of the essential facts constituting the offense charged made on a form approved
by the Administrative Director of the Courts. Except as otherwise provided by paragraph (b),
(Traffic Offenses), (c) (Penalty Enforcement Proceedings), and (d) (Special Form of Complaint
and Summons), all complaints shall be by certification or on oath before a Judge or other person
authorized by N.J.S.A. 2B:12-21. The municipal court administrator or deputy court
administrator shall accept for filing every complaint made by any person.
Rule 7:2-1(a)(2). Summons: This section provides that the summons shall be in a
Complaint-Summons form (CDR-1) or other form prescribed by the Administrative Director of
the Courts and shall be signed by the officer issuing it. The summons shall be directed to the
defendant named in the complaint and shall require the defendant's appearance at a stated time
and place before the court in which the complaint is made, and shall inform the defendant that an
arrest warrant may be issued for failure to appear.
Rule 7:2-1(a)(3). Arrest Warrant: This section provides that the arrest warrant shall be
made on a Complaint-Warrant form (CDR-2) or other form prescribed by the Administrative
Director of the Courts and shall be signed by the judge, or when authorized by the judge, by the
municipal court administrator or deputy court administrator. The warrant shall contain the
defendant's name or, if unknown, any name or description that identifies the defendant with
reasonable certainty. It shall be directed to any officer authorized to execute it and shall order
that the defendant be arrested and brought before the court issuing the warrant. The judicial
officer issuing the warrant may specify therein the amount and conditions of bail, consistent with
Rule 7:4, required for the defendant's release.
Rule 7:2-2(a). Issuance of Arrest Warrant or Summons. This Rule provides that an
arrest warrant or summons on a complaint charging any offense made by a private citizen may be
issued only by a judge, or if authorized by the judge, by a municipal court administrator or
deputy court administrator. The arrest warrant or summons may be issued only if the judge or
judicial officer determines from the complaint, affidavit, or testimony that there is probable
cause to believe that an offense was committed and the defendant committed it. The judge or
judicial officer shall note the finding of probable cause on the summons or warrant. The Rule
further provides that if the municipal court administrator or deputy court administrator finds no
probable cause to issue an arrest warrant or summons, that finding shall be reviewed by the
judge. If the judge finds no probable cause, the complaint shall be dismissed.
The Rule further provides that a summons on a complaint charging any offense may be
issued by a law enforcement officer without a finding by a judicial officer of probable cause for
issuance.
Rule 7:2-2 (b). Determination of Whether to Issue a Summons or Warrant.
This section provides that a summons rather than an arrest warrant shall be issued if the
defendant is a corporation, partnership or unincorporated association. If the defendant is an
individual, a summons rather than an arrest warrant shall be issued unless the judge or duly
authorized municipal court administrator or deputy municipal court administrator finds that the
defendant has failed to respond to a summons; or there is reason to believe that the defendant is
dangerous to himself or herself, or to others or property; or there is one or more outstanding
arrest warrants for the defendant; or the address of the defendant is not known and an arrest
warrant is necessary to subject the defendant to the jurisdiction of the court; or there is reason to
believe that the defendant will not appear in response to a summons.
Rule 7:3-1. Procedures After Arrest. This Rule provides that a defendant, following an
arrest, shall be brought before the Court without unnecessary delay and, if the defendant is in
custody, the first court appearance shall be within 72 hours after arrest. Such appearance shall be
before a judge authorized to set bail for the offenses charged in the complaint. If the defendant's
bail was not set when the arrest warrant on the complaint issued, it shall be set without
unnecessary delay but in no event more than 12 hours after arrest.
Rule 7:4-1. Right to Bail Before Conviction. This Rule provides that every defendant
shall have a right to bail before conviction on such terms as, in the judgment of the court, will
insure the defendant's presence when required, having regard for the defendant's background,
residence, employment and family status and, particularly, the general policy against
unnecessary sureties and detentions. In its discretion, the Court may order the defendant's
release on the defendant's own recognizance and may impose terms or conditions appropriate to
such release.
Rule 7:4-2. Authority to Set Bail. This Rule provides that conditions of pre-trial release,
including bail, may be set by a judge sitting regularly in or acting as a temporary judge of the
jurisdiction in which the offense was allegedly committed or by a vicinage Presiding Judge of
the Municipal Courts. In the absence of the judge, and consistent with N.J.S.A.: 2B-12-21, a
defendant charged with a non-indictable offense that may be tried by the judge may be admitted
to bail by the municipal court administrator or deputy court administrator. In the absence of the
judge, the municipal court administrator and the deputy court administrator, the defendant may
be admitted to bail by any other person authorized by law to admit to bail. The authority of the
municipal court administrator, deputy court administrator, or other authorized person shall be
exercised "only in according with the bail schedules promulgated by the Administrative Office
of the Courts or the Municipal Court Judge."
Our Subcommittee notes that the last municipal court bail schedule approved by the
Administrative Office of the Courts for non-indictable offenses was issued by former
Administrative Director Robert D. Lipscher on May 29, 1985. This memo was entitled "Bail
Guidelines and Schedules for Non-Indictable Offenses" and it delineated guidelines and
schedules for the setting of bail in non-indictable offenses. A copy of this memo is attached as
Exhibit A.
Rule 7:4-3(g). Ten Percent Cash Bail. This Rule provides that "Unless otherwise
specified in the order setting the bail, bail may be satisfied by the deposit in court or cash in the
amount of ten percent of the amount fixed together with the defendant's executed recognizance
for the remaining ninety percent. No surety shall be required, unless specifically ordered by the
court."
N.J.S.A. 2B:12-21. Officials Authorized to Act for Court. This statute provides that the
authority of the municipal court to set conditions of pre-trial release may be exercised by an
administrator or deputy court administrator of a municipal court who is authorized by the judge
of that court; or by any police officer in charge of a police station, other than an officer who
participated in the arrest of the defendant. This authority may be exercised only in accordance
with bail schedules promulgated by the Administrative Office of the Courts or by the municipal
courts.
This statute further provides that, except as otherwise provided by the Rules of Court, a
person charged with a non-indictable offense shall be released on a summons or personal
recognizance without unnecessary delay and within 12 hours after arrest unless a judge or court
administrator or deputy court administrator has set the conditions for pre-trial release and the
conditions remain unmet.
Our Subcommittee notes that, by memo dated February 24, 1988, former Administrative
Director Robert D. Lipscher wrote to Municipal Court Judges, municipal court administrators,
and municipal court clerks advising that the Supreme Court had reaffirmed its policy that if an
offense charged is "not serious and the amount of bail is not great," the municipal court should
accept personal checks rather than have a defendant held in jail until such time as the person
could obtain a bail bond or could post full cash. These "non-serious offenses" are defined in
former Director Lipscher's memo as all matters in which the Municipal Court Judges have the
authority to set bail. A copy of this memo is attached as Exhibit B.
The Subcommittee notes that the bail principles delineated in State v. Johnson, 61 N.J.
1972 and State v. Fann, 239 N.J. Super (Law. Div. 1990), both summarized in Section 2 herein,
would also apply to non-indictable offenses. Likewise, 2C:6-1, Bail for Persons Accused of
Minor Offenses, also summarized in Section 2 herein, also governs the offenses discussed in this
section.
SECTION 4
THE USE OF SUMMONSES AND WARRANTS
The Subcommittee wishes to emphasize that judges and other authorized judicial officers
who have authority to docket complaints and set bail should be continually cognizant that,
whenever appropriate, summonses should be used instead of warrants. Certainly, this is
consistent with the presumption of innocence afforded to all defendants prior to trial. We have
in this report summarized the court rules governing the use of warrants and summonses for
indictable and non-indictable offenses.
We recognize that, while certainly summonses will be justified with far greater frequency
when dealing with defendants charged with disorderly and petty disorderly persons offenses,
judges of both the Superior Court and the Municipal Court should be mindful of the use of
summonses on indictable charges when appropriate.
As discussed in section 2 herein, Rule 3:3 delineates the factors to be considered when
the initial decision is made to use a summons or a warrant. It is respectfully submitted that,
particularly in those cases in which a third or fourth degree non-violent offense is charged, and
the defendant has strong ties to the community and little or no prior record, a summons should
ordinarily be used unless it is an offense precluded under the Rule or the Court has other
information which justifies the use of a warrant. In the alternative, a warrant with an R.O.R. or
low bail amount should be used.
The Subcommittee also recommends that, if there has ever been a prior warrant or failure
to appear in any other case, judges or other judicial officers should carefully consider the weight
to be attached to this factor. Such negative information, which may attach from a case from
many years ago for a minor matter which was later resolved, should not necessarily preclude the
use of a summons in the instant case.
SECTION 5
THE REASONS FOR BAIL SCHEDULES
As noted in Section 1 of this report, the Committee discussed the feasibility of
establishing a bail schedule for indictable offenses. We have learned during our discussions,
particularly with input from the Municipal Presiding Judges on the Committee, that many
Municipal Court Judges have indicated that a general bail schedule for the offenses on which
they have the authority to set bail would be most helpful to them. Many of the Municipal Court
Judges, when appointed, are experienced civil or family court attorneys but have not previously
practiced in the criminal or quasi-criminal areas.
Our Subcommittee understands fully that the Municipal Presiding Judges make
considerable efforts to mentor and assist their vicinage Municipal Judges, particularly when they
are new. Many new judges, however, are the sole judge in the particular municipality and do not
have the benefit of working in close physical proximity with other, more experienced Municipal
Judges. Under these circumstances, the Subcommittee concludes that a general bail schedule
would be beneficial to Municipal Court Judges. We have also included in this bail schedule a
number of frequently charged disorderly persons and petty disorderly persons offenses.
Our Subcommittee further believes that a separate bail schedule should include offenses
which can only be set by a Superior Court Judge. We believe that this would particularly benefit
civil and family court judges on emergent duty who may have little or no criminal experience, as
well as judges who are newly assigned to the criminal division.
While concluding that general bail schedules are appropriate, we wish to emphasize that
we fully understand that these general bail ranges are only meant to be advisory in nature. There
is no question but that each case that is considered by a Superior or Municipal Court Judge is
extremely fact sensitive and important factors, such as the apparent strength or weakness of the
state's proofs, prior record, if any, roots in the community, the mental condition of the defendant
and prior history while on bail, can all serve to substantially raise or lower bail from the general
range. See State vs. Johnson, supra, and Rule 3:26-1(e). Indeed, two defendants charged with
identical offenses may fairly be assessed substantially different bails if one has little or no prior
record and the other has multiple prior convictions which exposes him or her to an extended term
of imprisonment. Likewise, the existence of numerous out of state arrests and convictions may
give the Judge legitimate concern about the risk of flight and thereby justify a substantially
higher bail than for a defendant with strong local ties.
We further note that these ranges of bails cannot simply be assessed by determining the
degree of the alleged offense(s) alone since many crimes within the same degree are significantly
different with respect to the seriousness of the criminal conduct, the harm to the victim and the
danger to the community. As a result, there are often significant differences with respect to the
custodial exposure that the defendant realistically faces if convicted. These factors can strongly
impact on the judicial analysis of the risk of flight as it pertains to the setting of bail.
There are numerous examples of these types of situations within the New Jersey Criminal
Code. For example, burglary of an auto and burglary of a residence are both third degree crimes
under 2C:18-2(a)(1). It is obvious, however, that the burglary of a home is particularly traumatic
to the victim and likely will result in a higher sentence within the third degree range than a
burglary of an auto conviction. Likewise, possession of a controlled dangerous substance,
2C:35-10, and possession of a controlled dangerous substance with intent to distribute, 2C:35-5,
are, in most cases, both third degree crimes. There is no question, however, that the intent to
distribute charge is the far more serious one, particularly if it is committed within 1000 feet of a
school, 2C:35-7, with the accompanying mandatory jail penalties.
Other examples would include the tremendous difference in custodial exposure for
certain second-degree crimes, which normally carry a sentence of between 5 and 10 years. A
defendant who receives a flat 5 year sentence for possession of a controlled dangerous substance
with intent to distribute within 500 feet of a public park, 2C:35-7.1, will be eligible for parole in
about a year and may even be admitted to the Intensive Supervision Program after only a few
months. A defendant who is charged with 2C:12-1b(1) , second degree aggravated assault, will
be sentenced under the No-Early Release Act, 2C: 43-7.2, and will have to serve a full 85% of
whatever sentence is imposed. If that defendant receives a five year sentence, he or she will
serve four years and three months before parole eligibility. Finally, we note the substantial
differences in two particular fourth degree crimes. 2C:12-1(b)(4), Pointing a Firearm, is a
violation of the Graves Act, 2C:43-6(g), and requires upon conviction that the full 18 month
sentence be served without parole. 2C:20-3, Theft of Property with a value of at least $200 but
less than $500, often results in Pre-Trial Intervention for a first offender or otherwise in
probation with little or no jail time. Again, as noted above, there are a myriad of similar
examples throughout Title 2C wherein enormous differences in seriousness exist among and
between statutes of the same degree.
We further note that judges setting bail may be presented with a defendant who has
multiple charges of a particular crime or different crimes. These circumstances can certainly
elevate the appropriate bail, both within the suggested range or above it. On the other hand, a
defendant charged with one count, particularly if it is a non-violent crime, where there is little
risk of flight, might properly receive a bail below the suggested range or be released on his or her
own recognizance.
Our Subcommittee strongly recommends that, wherever permissible and reasonable,
Courts permit the 10% cash alternative to be employed. The cash bail will eventually be
returned to the defendant or other surety, as opposed to the premium paid to a bondsman. A cash
bail may result in a defendant being much more able to post bail on his or her own or to secure
funding from family or friends. The return of these monies may also assist a defendant to be able
to retain a particular attorney who would otherwise not be affordable if a premium for a bond
was required.
With all of these caveats in mind, the subcommittee has prepared two proposed general
bail schedules. As noted in Section 1 herein, the first is a bail schedule which lists the crimes for
which only a Superior Court Judge may set bail under Rule 3:26-2. The second bail schedule
lists the statutes which, according to AOC statistics for the year 2002, represent the most
frequently charged offenses. While there are numerous other statutes within Title 2C, the
Subcommittee concludes, based upon the statistics and the experience of our members, that they
are infrequently charged. If a Judge is presented with a case involving an alleged violation of
any of these other statutes, the bail evaluation should be conducted using all relevant factors as
listed in Rule 3:26-1 and as discussed in State v. Johnson, supra. and State vs. Fann, supra.
SECTION 6
BAIL SCHEDULE 1
STATUTES WHICH REQUIRE BAIL TO BE SET
BY A SUPERIOR COURT JUDGE, PURSUANT
TO RULE 3:26-2
The Subcommittee again notes that Rule 3:26-2 does not include attempts or conspiracies to
commit these crimes in its requirement that a Superior Court Judge set the bail. Hence, the
Municipal Court Judge or, in the absence of the judge, a municipal court administrator or deputy
municipal court administrator may set bail when an attempt or conspiracy charge is alleged.
The Subcommittee recommends that, while again noting that each evaluation must be fact
sensitive, the bail ranges for attempts or conspiracies should generally be the same as the actual
substantive crime. An attempt or conspiracy which does not succeed or does not culminate in the
actual commission of the substantive offense usually involves intent and conduct which is as serious
or nearly as serious as the actual commission of the offense. Further, while an R.O.R. bail is rare for
offenses listed in this Schedule, there is no prohibition if the judge believes R.O.R. to be
appropriate.
The Subcommittee has included in Bail Schedule 1 a very general description of the conduct
necessary to constitute a violation of any of these statutes. This summary is meant to assist judges
by providing a quick reference to the basic requirements of the statute and to the degree or degrees
of liability therein. Bail Schedule 2
As noted in Bail Schedule 1, bail on attempts or conspiracies to commit any of the offenses
listed in that section may be set in the municipal court.
As was the conclusion of the Subcommittee regarding the Bail Schedule 1 offenses, we
again recommend the same bail ranges for charges of attempt or conspiracy to commit any of the
following crimes as for the substantive crime. We also reiterate that, if the judge concludes that a
monetary bail is not necessary, an R.O.R. may be set. During our discussions, we have learned that
many judges do not attach monetary amounts to an R.O.R. bail, i.e., $2,500 R.O.R. These judges
simply release the defendant on his or her own recognizance. Additionally, most counties do not
attempt to obtain monies from the defendant on a forfeited R.O.R. bail, even though a monetary
amount was attached.
Judge Elaine Davis, the prior Chair of the Conference of Criminal Presiding Judges
Conference, informed us at our February 25, 2004 Presiding Criminal Judges meeting that the Bail
Forfeiture Committee had voted to recommend that no monetary amounts be attached to R.O.R.
bails. In recent months, this issue has been discussed again at the Conference of Criminal Presiding
Judges and at the Conference of Municipal Presiding Judges.
The Conference of Criminal Presiding Judges voted by a substantial majority to recommend
that no monetary amounts be attached to R.O.R. bails. While there was some discussion that some
defendants may be further impressed with the importance of appearing in Court when required if
some monetary amount for failure to appear does attach, the general consensus was to acknowledge
that most counties do not, following a non-appearance and a forfeiture of the R.O.R. bail, move
such forfeitures to judgment. The Conference of Municipal Presiding Judges, however, recently
voted by a substantial majority to recommend that judges retain the option of having monetary
amounts attached to R.O.R. bails. The majority of this Conference believes that such condition
does further impress upon the defendant the importance of appearing in Court when required.
It is the understanding of our Subcommittee that this issue will be discussed at the Judicial
Council and that a final directive will be issued by Judge Philip S. Carchman, the Administrative
Director of the Courts.
We have, as in Bail Schedule 1, included a very general description of the conduct
necessary to constitute a violation of any of these statutes. Again, this summary is meant to assist
judges by providing a general reference to the basic requirements of the statute and to the degree or
degrees of liability therein. It is not meant to be all-inclusive. Indeed, many of these statutes have
numerous subsections within them, and, depending upon the conduct alleged, a violation can range
from a disorderly persons offense to a second degree crime. 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; |
