Kenneth Vercammen is a Middlesex County trial attorney who has published 130 articles in national and New Jersey publications on Criminal Law and litigation topics. He was awarded the NJ State State Bar Municipal Court Practitioner of the Year. He lectures and handles criminal cases, Municipal Court, DWI, traffic and other litigation matters. He is Co Chair of the ABA Criminal Law Committee, GP and was a speaker at the ABA Annual Meeting. To schedule a confidential consultation, call us or New clients email us evenings and weekends go to www.njlaws.com/ContactKenV.htm

Kenneth Vercammen & Associates, P.C,

2053 Woodbridge Avenue,

Edison, NJ 08817,

(732) 572-0500,

www.njlaws.com

Saturday, December 29, 2012

CONDITIONAL DISCHARGE TO DISMISS MUNICIPAL COURT DRUG CHARGES


CONDITIONAL DISCHARGE TO DISMISS MUNICIPAL COURT DRUG CHARGES

By Kenneth Vercammen, Trial Attorney
The defense of a person charged with possession of drugs or drug paraphernalia is not impossible. Attorneys should not merely suggest that their client plead guilty to save a few dollars. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of involvement with controlled dangerous substances (CDS).

         The Municipal Courts in New Jersey have jurisdiction to hear the following drug‑related offenses:
         NJSA 2C:5‑10(a)(4), possession of 50g or less of marijuana or 5g or less of hashish; NJSA 2C:35‑10(b), using or being under the influence of CDS; NJSA 2C:35‑10(c), failure to deliver CDS to police; NJSA 2C:36‑2, possession of drug paraphernalia.
      N.J.S.A. 2C:36A‑1 provides that a person not previously convicted of a drug offense either under Title 2C or Title 24 and who has not previously been granted "supervisory treatment" under 24:21‑27 (Old Drug Law CD), 2C:43‑12 (PTI) or 2C:36A‑l (conditional discharge) may apply for a conditional discharge.

         The defense attorney can make a Motion, upon notice to the prosecutor and subject to 2C:36A‑l(c) for first offenders to suspend further proceedings and place the defendant on supervisory treatment (i.e., probation, supervised or unsupervised attendance at Narcotics Anonymous, etc.). This is Motion For Conditional Discharge.  Since the granting of a Conditional Discharge is optional with the court, defense counsel should be prepared to prove, through letters, documents, or even witnesses, that the defendant's continued presence in the community or in a civil treatment program, will not pose a danger to the community.
Defense counsel should be prepared to convince the court that the terms and conditions of supervisory treatment will be adequate to protect the public and will benefit the defendant by serving to correct any dependence on or use of controlled substances. For applicable caselaw on Conditional Discharges, see State v Sanders N.J. Super 515 (App. Div. 1979), State v Banks 157 N.J. Super. 442 (Law Div. 1978), State v Grochulski 133 NJ Super 586 (Law Div. 1975), State v Teitelbaum. 160 NJ Super 450 (Law Div. 1978), State v Bush 134 NJ Super 346 (Cty Ct 1975), State v DiLuzio 130 NJ Super 220 (Law Div. 1974).
The defendant must pay a $45.00 application fee, plus the mandatory $500.00 DEDR penalty. The court further has the option to suspend a defendant's driver's license for between six months and two years.

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

CONCLUSION

         Narcotics and Drug related offenses carry substantial penalties which will effect your client for the rest of his life. The space limits of this article do not allow detailed explanation of the extensive caselaw on Narcotics.  Drug law and other defenses are  explained in greater details in other articles on www.njlaws.com.
Good luck!

PRE-TRIAL INTERVENTION TO DISMISS CRIMINAL CHARGES


PRE-TRIAL INTERVENTION TO DISMISS CRIMINAL CHARGES

By Kenneth A. Vercammen, Esq.
  
         Under New Jersey Criminal Statute and Court Rules, someone charged with an indictable criminal offense who has no prior indictable offenses can apply for Pre-Trial Intervention (PTI).

         This Statute permits someone under limited instances to have the prosecution stopped and enter into a probation type program.  If someone successfully completes PTI, the indictable criminal charge is dismissed.

         PTI is not available if the criminal offense is a disorderly person offense, such as simple assault, harassment or shoplifting.  For persons facing a first offense possession of marijuana charge, they can apply for a Conditional Discharge.  NJSA 2C: 36-1.  As a practical matter, in Municipal Courts, the defense attorneys sometimes can work out an agreement with the complainant in a municipal court criminal ticket to have the prosecution put on hold for six months.  If the defendant complies with a stipulated agreement, such as staying away from the complainant, after 6 months the criminal charges are dismissed.

         It is imperative for someone facing criminal charges, whether indictable or not, to immediately hire an experienced criminal attorney.  Do not rely on a real estate attorney to be familiar with recent cases affecting PTI and criminal law. 
        
         PTI should be applied for immediately with Criminal Case Management.  The Court Rules have time limits for PTI application and appeals from denial of PTI.   Procedurally, once the accused applies for PTI, a decision to accept or reject is made by the Criminal Case Manager.  If approved, then the County Prosecutor's office must approve.  Thereafter, the Superior Court Judge assigned to the case must approve the defendant.
        
         If the defendant is rejected by either the Criminal Case Manager or the Prosecutor, a timely appeal must be filed with the Superior Court Judge. 

In Practice, we recommend the client obtain letters of reference, proof of employment, a resume and other supporting documents to provide to the Criminal Case Manager.  Similar to sentencing, you want to provide any beneficial facts and papers to demonstrate the defendant is a first time offender who is unlikely to again be involved in a criminal case.

         Similar to Probation following a guilty plea or conviction, the Court can require the defendant to perform certain acts.  Typical re-trial orders direct the defendant to not get arrested, undergo drug and alcohol testing and counseling, pay restitution or perform other acts.  Non-compliance will result in dismissal from PTI.  Thereafter, the defendant must face trial on all indictable charges.

CONDITIONAL DISCHARGE OF DRUG CHARGES IN MUNICIPAL COURT

         Some people are charged with possession of small amounts of marijuana.  N.J.S.A. 2C:36A-1 provides that a person not previously convicted of a drug offense either under Title 2C or Title 24 and who has not previously been granted "supervisory treatment" under N.J.S.A. 24:21-27, 2C:43-12 or 2C:36A-1 may apply for a conditional discharge.  The court upon notice to the prosecutor and subject to 2C:36A-1(c) may, on the motion of the defendant or the court, suspend further proceedings and place the defendant on supervisory treatment (i.e., probation,, supervised or unsupervised attendance at Narcotics Anonymous, etc.).  Since the granting of a conditional discharge is optional with the court, defense counsel should be prepared to prove, through letters, documents, or even witnesses, that the defendant's continued presence in the community or in a civil treatment program, will not pose a danger to the community.

         Defense counsel should be prepared to convince the court that the terms and conditions of supervisory treatment will be adequate to protect the public and will benefit the defendant by serving to correct any dependence on or use of controlled substances.  For applicable caselaw on conditional discharges, see State v. Sanders, N.J. Super. 515 (App. Div. 1979), State v. Banks, 157 N.J. Super. 442 (Law Div. 1978), State v. Grochulski, 133 N.J. Super. 586 (Law Div. 1975), State v. Teitelbaum, 160 N.J. Super. 450 (Law Div. 1978), State v. DiLuzio, 130 N.J. Super. 220 (Law Div. 1974).  The defendant must be required to pay a $45.00 application fee, plus the mandatory $500.00 DEDR penalty.  The court further has the option to suspend a defendant's driver's license for between six months and two years.

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

         Drug related offenses carry substantial penalties which will effect a client for the rest of his life.  The space limits of this article do not allow detailed explanation of the extensive caselaw on controlled dangerous substances.  Members of the Bar must accept the challenge and apply their legal talents to ensure that the rights of their clients are protected.

CONCLUSION

         Pre-trial intervention is an excellent opportunity for someone to avoid a trial and conviction.  If facing criminal charges, quickly sit down with a criminal attorney to protect your rights.  If accepted into Pre-Trial Intervention, Motions to Suppress Evidence and other Motions are put on hold.

PSI Presentence Report


PSI Presentence Report

New Jersey Criminal Sentencing
Although the offense someone is charged with plays the biggest role in the judge’s determination of your sentence, there are numerous other factors to be considered. The majority of the information used in determining what type of sentence is appropriate for you is found in a Presentence Report.
     A presentence report is an investigative report provided to the judge that includes a wide array of information. The presentence investigation is typically done by a probation officer and may include the following:
  Criminal History
  Employment
  Family support
  Alcohol/Drug history
  Mental health evaluation
  Medical history
  Personal habits
  Finance history

Ref: NJ §2C:44-6
Arguably the most important piece of information on the presentence report is the court investigating officer’s recommendation. The officer will make their recommendation on the belief on the likelihood of your success on probation or whether they believe you would be best served by incarceration.
The judge is not required to follow the recommendation of the presentence report, though they will likely give the investigating officer’s professional opinion some consideration.

The following is the statute dealing with pre-sentence reports

2C:44-6   Procedure on sentence; presentence investigation and report.
*      a.The court shall not impose sentence without first ordering a presentence investigation of the defendant and according due consideration to a written report of such investigation when required by the Rules of Court.  The court may order a presentence investigation in any other case.
*      b.The presentence investigation shall include an analysis of the circumstances attending the commission of the offense, the defendant's history of delinquency or criminality, family situation, financial resources, including whether or not the defendant is an enrollee or covered person under a health insurance contract, policy or plan, debts, including any amount owed for a fine, assessment or restitution ordered in accordance with the provisions of Title 2C, any obligation of child support including any child support delinquencies, employment history, personal habits, the disposition of any charge made against any codefendants, the defendant's history of civil commitment, any disposition which arose out of charges suspended pursuant to N.J.S.2C:4-6 including the records of the disposition of those charges and any acquittal by reason of insanity pursuant to N.J.S.2C:4-1, and any other matters that the probation officer deems relevant or the court directs to be included. The defendant shall disclose any information concerning any history of civil commitment. 
*      The report shall also include a medical history of the defendant and a complete psychological evaluation of the defendant in any case in which the defendant is being sentenced for a first or second degree crime involving violence and:(1)the defendant has a prior acquittal by reason of insanity pursuant to N.J.S.2C:4-1 or had charges suspended pursuant to N.J.S.2C:4-6; or(2)the defendant has a prior conviction for murder pursuant to N.J.S.2C:11-3, aggravated sexual assault or sexual assault pursuant to N.J.S.2C:14-2, kidnapping pursuant to N.J.S.2C:13-1, endangering the welfare of a child which would constitute a crime of the second degree pursuant to N.J.S.2C:24-4, or stalking which would constitute a crime of the third degree pursuant to section 1 of P.L.1992, c.209 (C.2C:12-10); or(3)the defendant has a prior diagnosis of psychosis.
*      The court, in its discretion and considering all the appropriate circumstances, may waive the medical history and psychological examination in any case in which a term of imprisonment including a period of parole ineligibility is imposed.  In any case involving a conviction of N.J.S.2C:24-4, endangering the welfare of a child; N.J.S.2C:18-3, criminal trespass, where the trespass was committed in a school building or on school property; section 1 of P.L.1993, c.291 (C.2C:13-6), attempting to lure or entice a child with purpose to commit a criminal offense; section 1 of P.L.1992, c.209 (C.2C:12-10), stalking; or N.J.S.2C:13-1, kidnapping, where the victim of the offense is a child under the age of 18, the investigation shall include a report on the defendant's mental condition.
*      The presentence investigation shall also include information regarding the defendant's history of substance abuse and substance abuse treatment, if any, including whether the defendant has sought treatment in the past.  If any of the factors listed in subsection b. of section 1 of P.L.2012, c.23 (C.2C:35-14.1) apply, the presentence report shall also include consideration of whether the defendant may be a drug dependent person as defined in N.J.S.2C:35-2.
*      The presentence investigation shall include an analysis of whether the defendant should be required to submit to a professional diagnostic assessment within the meaning of paragraph (1) of subsection a. of N.J.S.2C:35-14 in any case where: the defendant may be a drug dependent person as defined in N.J.S.2C:35-2; the defendant is eligible to be considered for a sentence to special probation pursuant to N.J.S.2C:35-14; and the court has not already ordered the defendant to submit to any such diagnostic assessment in regard to the pending matter.
*      The presentence report shall also include a report on any compensation paid by the Victims of Crime Compensation Agency as a result of the commission of the offense and, in any case where the victim chooses to provide one, a statement by the victim of the offense for which the defendant is being sentenced. The statement may include the nature and extent of any physical harm or psychological or emotional harm or trauma suffered by the victim, the extent of any loss to include loss of earnings or ability to work suffered by the victim and the effect of the crime upon the victim's family.  The probation department shall notify the victim or nearest relative of a homicide victim of his right to make a statement for inclusion in the presentence report if the victim or relative so desires.  Any such statement shall be made within 20 days of notification by the probation department.
*      The presentence report shall specifically include an assessment of the gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age, disability, ill-health, or extreme youth, or was for any other reason substantially incapable of exercising normal physical or mental power of resistance.
*      c.If, after the presentence investigation, the court desires additional information concerning an offender convicted of an offense before imposing sentence, it may order any additional psychological or medical testing of the defendant.
*      d.Disclosure of any presentence investigation report or psychiatric examination report shall be in accordance with law and the Rules of Court, except that information concerning the defendant's financial resources shall be made available upon request to the Victims of Crime Compensation Agency or to any officer authorized under the provisions of section 3 of P.L.1979, c.396 (C.2C:46-4) to collect payment on an assessment, restitution or fine and that information concerning the defendant's coverage under any health insurance contract, policy or plan shall be made available, as appropriate to the Commissioner of Corrections and to the chief administrative officer of a county jail in accordance with the provisions of P.L.1995, c.254 (C.30:7E-1 et al.).
*      e.The court shall not impose a sentence of imprisonment for an extended term unless the ground therefor has been established at a hearing after the conviction of the defendant and on written notice to him of the ground proposed.  The defendant shall have the right to hear and controvert the evidence against him and to offer evidence upon the issue.

Rule 3:21-2. Presentence Procedure
              (a) Investigation. Before the imposition of a sentence or the granting of probation court support staff shall make a presentence investigation in accordance with N.J.S.A. 2C:44-6 and report to the court. The report shall contain all presentence material having any bearing whatever on the sentence and shall be furnished to the defendant and the prosecutor. On counts on which the death penalty is to be imposed, a presentence report shall not be prepared.
              (b) Examination. After the presentence investigation and before imposing sentence, the court may order, pursuant to N.J.S.A. 2C:44-6c, a physical or mental examination of the defendant provided that the defendant may not be committed to an institution for the purpose of that examination. The examination report shall be furnished to the defendant and the prosecuting attorney.